Final Order 1

Order Details: Ex-parte Judgement
Pdf Text: 1 Comm. Suit No.4062020
MHCC010023802020 Presented on : 21/01/2020
Registered on : 25/02/2020
Decided on : 21/1/2023
Duration : 2Y/10M/27D
Exh.32
IN THE CITY CIVIL COURT AT MUMBAI.
(COURT ROOM No.32)
COMMERCIAL SUIT No.406 OF 2020
Union Bank of India(eCorporation Bank)
a body corporate constituted under the
Banking Companies (Acquisition & Transfer
of Undertakings) Act, 1970, having its
Central Office at Union Bank Bhavan, 239,
Backbay Reclamation, Nariman Point,
Bombay 400 021 and having their Branch
at, Acharya Mahapragya Vidhya Nidhi
Foundation Building, 32, Dadi Seth Agyari,
Kalbadevi Road, Mumbai400 002 through
their Constituted attorney, Mr. Kamal
Narayan Rai, Asst. Gen. Manager. ...PLAINTIFF
VERSUS
Ashok Revashankar Oza
Proprietor M/s. Umang Textiles, having its
registered office at F/109, Shiv Krupa
Textile Market, Behind, 451 Textile Market,
Ring Road, Surat395 022.
And
191, Cavel X Lane No.9, 1st Floor,
Kalbadevi, Mumbai 400 002.
...DEFENDANTS
Shri. Anand Shitap h/f. Jamshed Ansari, learned Advocates for
plaintiff.
Defendant exparte.
CORAM : HIS HONOUR JUDGE SHRI. N.P. TRIBHUWAN
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2 Comm. Suit No.4062020
E XP A R T E J U D G M E N T
(Delivered on 21/1/2023)
This is a suit for recovery of sum of Rs.18,00,362/ and
interest @ of Rs.14% p.a. on principal sum of Rs.16,54,118/ from the
date of suit till realisation of amount.
2. It is case of plaintiff that it is a body corporate established
under the Banking Companies (Acquisition and Transfer of
Undertakings) Act, 1970. Pursuant to the application made by
defendant, the plaintiff bank sanctioned cash credit facility (HYP) of
Rs.17,00,000/ on 17.04.2004, 11.11.2004 and 05.09.2014 to the
defendant. To secured the amount due under the said facilities the
defendant being proprietor of M/s. Umang Textiles executed security
document in favour of plaintiff i.e. hypothecation agreement dated
16.04.2004. Defendant has availed credit facilities as per his business
requirements. Plaintiff has debited the amount used and utilized by
defendant together with accrued interest, costs, charges, expenses etc
and also given credit for the amount deposited by defendant in the
accounts.
3. Initially, loan was sanctioned on 17.04.2004 for cash credit
(Hypothecation) of Rs.17,00,000/ and subsequently on 17.11.2004
sanctioned term loan – 1st and 2nd of Rs.10 lakh and Rs.3.80 lakh
respectively. The loan was renewed on 26.11.2005 and 05.09.2014. For
securing repayment of Loan renewed/enhanced under sanction letter
dated 26.11.2005 defendant has executed supplementary hypothecation
agreement on 26.11.2005.
4. Again on request of defendant plaintiff has sanctioned
enhanced cash credit facility (Hypothecation) of Rs.15,00,000/ to
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3 Comm. Suit No.4062020
17,00,000/. Defendant has executed supplementary hypothecation
agreement dated 17.01.2007, letter of continuity dated 17.01.2007,
demand promissory note dated 17.01.2007 for Rs.17,00,000/ together
with interest @ 0.25% or such other rate as may be prescribed with
minimum 12.25% p.a. with monthly rests.
5. Defendant in his personal capacity stood as personal
guarantor and executed letter of guarantee dated 17.01.2007 for sum of
Rs.17,00,000/. Defendant has executed demand promissory note dated
11.08.2008 in favour of plaintiff to secure payment of Rs.17,00,000/
together with interest @11.75% or such other rate as may be prescribed
by bank with a minimum of @11.75% p.a. with monthly rests. He also
executed letter of conformation/acknowledge of debt on 28.06.2011
confirming debt or Rs.16,86,469/ including interest upto 31.05.2011.
6. Pursuant to the request of defendant the plaintiff has
renewed exiting facility of Rs.17 lakh vide sanction advice dated
05.09.2014. Accordingly, defendant has executed undertaking/fresh
promise in case of time barred debt dated 11.12.2014 acknowledging
the loan of Rs.17 lakh. He also executed supplementary hypothecation
agreement on 11.12.2014.
7. On request of defendant plaintiff has again renewed cash
credit facility vide memorandum dated 30.07.2016 on terms and
conditions mentioned therein. In view of said renewal, defendant has
executed demand promissory note on 27.12.2017. Defendant also
executed debit balance conformation dated 11.08.2008 for sum of
Rs.3,35,436/ (exclusive interest) dated 25.05.2013 for sum of
Rs.16,92,201/ excluding interest, dated 25.05.2013 for sum of
Rs.16,70,858/ excluding interest, dated 25.05.2013 for sum of
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4 Comm. Suit No.4062020
Rs.17,04,296/ excluding interest, dated 24.04.2014 for sum of
Rs.16,52,030/ excluding interest, dated 24.04.2014 for sum of
Rs.16,92,201/ excluding interest, dated 25.03.2015 for sum of
Rs.17,48,443/ excluding interest, dated 24.08.2016 for sum of
Rs.17,08,873/ excluding interest, dated 01.04.2018 for sum of
Rs.16,54,118/ excluding interest.
8. However, defendant became irregular in operating the
account of said credit facilities. As per terms of sanction, the said loan
was repayable in addition to monthly accrued interest on cash credit
facility. However, defendant failed and neglected to pay the said loan.
Plaintiff has several times demanded defendant to clear the outstanding
dues but he failed to pay the same. Due to non payment of loan amount
the said loan account declared as non performing assets on 01.04.2019
and sum of Rs.18,89,253/ was outstanding on date of declaration.
9. Plaintiff sent notice to defendant on 14.11.2019 and called
upon him to pay outstanding sum of Rs.17,94,168/. However, the said
notice returned unserved with postal remark “Left” “Not Known”. On
the date of filing of suit defendant was in outstanding dues as under.
Outstanding as on 14.11.2019
(Including interest)
Rs.17,94,168/
Interest @ 14 p.a. from
15.11.2019 to 24.11.2019.
Rs.6,193/
Total Rs.18,00,362/
10. Defendant served with suit summons but he did not
appear. Hence, suit proceeded exparte against him as per order
dtd.18.06.2022.
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5 Comm. Suit No.4062020
11. On above facts following points arise for determination and
this court and recorded findings thereon for the reasons stated as under.
POINTS FINDINGS
1. Whether the plaintiff proved that it has
initially sanctioned and disbursed cash
credit facility of Rs.17 lakh to defendant on
17.04.2004 and 11.11.2004 ?
…Yes.
2. Whether plaintiff proved that the cash
credit facility renewed from time to time
on the request of defendant?
...Yes.
3. Whether the plaintiff proved that
defendant is in outstanding sum of
Rs.18,00,362/ ?
…Yes.
4. Whether plaintiff is entitled for interest @
14% p.a. on principal sum of
Rs.16,54,118/ from the date of suit till
realization of amount?
...Yes.
5. What order and decree? ...As per final
order.
REASONS
AS TO POINT Nos.1 to 4 :
12. Heard learned counsel of Plaintiff. Plaintiff has examined
Chief Manager (PW1 Mr. Mohammad Ibraheem) to prove its case. He
reproduced all content of plaint in his chiefexamination. His evidence
is supported by documentary evidence as under : Supplementary
hypothecation agreement executed in favour of plff dt. 17/01/2007,
letter of continuity executed by the deft dt. 17/01/2007, Demand
promissory note executed by the deft dt. 17/01/2007, Letter of
guarantee executed by the deft dt. 17/01/2007, Demand promissory
note dt. 11/08/2008, letter of confirmation dt. 28/06/2011, proposal
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6 Comm. Suit No.4062020
for renewal of cash credit facility, sanction advice dt.05/09/2014,
letter of undertaking dt.11/12/2014, Supplementary hypothecation,
memorandum dt. 30/07/2016, demand promissory note dt
27/12/2017, debit balance confirmation dt.11/08/2008, 25/05/2013,
25/05/2013, 25/05/2013, 24/04/2014, 24/04/2014, 25/03/2015,
24/08/2016, 01/04/2018, demand notice dt.14/11/2019, two RPAD
envelopes, statement of account dt.15/11/2019, certificate of NPA dt.
01/07/2011, Certificate under section 2A (a) of the Banker’s Book
Evidence Act, Certificate under section 2A (c) of the Banker’s Book
Evidence Act and Power of attorney dt. 11/09/2012. (Exh.13 to 31).
13. In view of evidence of PW1 Chief Manager of plaintiff
Bank and documentary evidence (Exh.13 to 31), it becomes clear that
on the request of defendant the plaintiff has sanctioned him cash credit
facility (HYP) of Rs.17,00,000/ on 17.04.2004, 11.11.2004 and
05.09.2014. At the time of sanctioning the said loan defendant has
executed agreement for hypothecation and other documents in favour
of plaintiff mentioned in para supra. Statement of account shows that as
on 20/6/2019 an amount of Rs.17,10,443/ was outstanding in loan
account of defendant.
14. Evidence of PW1 remained unchallenged. His evidence is
supported by documentary evidence mentioned in para supra. PW1
contended in chiefexamination that as per debit balance confirmation
the outstanding sum is Rs.16,54,118/ in excluding interest from
01/04/2018. There is no reason to disbelieve his testimony. Hence,
plaintiff succeed to prove that it has advanced above mentioned loan to
defendant with conditions. As on 14/11/2019 the amount of
Rs.18,00,362/ is due and payable by defendant to plaintiff with
interest at the rate of 14% p.a. Therefore, plaintiff is entitled for the
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7 Comm. Suit No.4062020
recovery of the same. Hence, I answered point Nos.1 to 3 as above.
Hence, I pass the following order.
ORDER
1. Suit is decreed with costs.
2. The defendant is directed to pay to plaintiff the amount
of Rs.18,00,362/ and interest @ 14 % p.a. on principal
sum of Rs.16,54,118/ from the date of suit till
realization of the said amount
3. Decree be drawn up accordingly.
Date : 21/1/2023.
(N.P. Tribhuwan)
Judge, City Civil Court,
Mumbai. C.R.No.32
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8 Comm. Suit No.4062020
Dictated on :21/1/2023.
Checked on :21/1/2023.
Signed on :21/1/2023.
CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER”
21/1/2023. Mrs.Rupali S. Bhor
UPLOAD DATE AND TIME NAME OF STENOGRAPHER
Name of the Judge(with CR No.) HHJ SHRI. N. P. TRIBHUVAN
(C.R.No.32)
Date of pronouncement of Order 21/1/2023.
Order signed by P.O. on 21/1/2023.
Order uploaded on 21/1/2023.
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