Final Order 2

Order Details: Ex-parte Judgement
Pdf Text: CS No.100168 / 2021,
Canara Bank – Shankar Judgment (Exh.23), 1 of 5
MHCC010028302020 Suit Filed on : 04.03.2020
Evidence Over : 13.12.2023
Arguments Heard : 07.02.2024
Decided on : 07.02.2024
Duration : 03 Y, 11 M, 4 Days
City Civil & Sessions Court, Mazgaon, Greater Mumbai
Court Room No. 31 – Commercial Court
(Additional District Judge : Vijay S. Hingne, LL. M.)
Commercial Suit No. 100168 / 2021 Exhibit No. 23
Plaintiff : Canara Bank,
Head Office : 112, J. C. Road,
Bangalore, Karnataka State.
Branch Office : 10, Homji Street Branch,
Fort, Mumbai 400 023
Through Vandana Nadkarni
VERSUS
Defendant : M/s. Shankar Travels
Proprietor : Shankar Chandoo Rathod
B-201, Sai Leela Residency,
Near Balaji Paradise, Nandivali,
Opp. Kakacha Dhaba, Kalyan (East)
Dist. Thane, Maharashtra 421306.
Appearances
Plaintiff
: Adv. Ms. Sujata Dahigaonkar
Defendant
: Ex-parte
Suit for Recovery of ₹. 3,37,948.05/-
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J U D G M E N T
(Delivered on this 7th Day of February, 2024)
Suit is preferred for recovery of .	₹ 3,37,948.05/- with
interest @ 10.75 % per annum.
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CS No.100168 / 2021,
Canara Bank – Shankar Judgment (Exh.23), 2 of 5
Case of Plaintiff :
2) Plaintiff Canara Bank, Mumbai, Maharashtra,
(hereinafter,
plaintiff) is Banking Institution.
Defendant M/s. Shankar Tours & Travels, Kalyan, Dist.
Thane, Maharashtra, is proprietorship firm of Shankar Chandoo
Rathod (hereinafter,
defendant).
3) Defendant had applied for Term Loan Facility of
.	₹ 5,50,000/- for purchase of car, Maruti Suzuki DZire for
commercial business. Defendant executed various documents as
Loan Application, Sanction Letter, Composite Hypothecation
Agreement, Receipt, Particulars of Assets and Liabilities, Letter
of Authority, etc. Accordingly, vide Sanction Letter Dt.
31.12.2015, plaintiff sanctioned said loanto defendant. Through
above documents, defendant agreed to repay said loan with
interest @ 10.95 % p. a. in 84 EMIs of .	₹ 9,410/-. However,
defendant defaulted the repayment. Hence, on 28.01.2019,
plaintiff declared account of defendant as NPA.
Vide Recall Notice Dt. 01.03.2019, plaintiff asked
defendant to repay balance .	₹ 3,37,948.05/-. Despite that,
defendant failed. Hence, plaintiff preferred present Commercial
Suit No. 100168 / 2021 for recovery of ₹. 3,37,948.05/- with
future interest @ 10.75 % per annum.
Defendant :
4) Plaintiff filed affidavit of service at Exh. 4 (21.10.2023)
stating that, defendant has refused the RPAD summons.
Plaintiff also filed affidavit of service at Exh.5
(21.10.2023) stating that, bailiff had pasted summons on Notice
Board of City Civil Court, on 08.09.2023.
Plaintiff also filed affidavit of service at Exh.6
(21.10.2023) stating that, defendant is served by way of paper
publication in
Free Press Journal and
Nakshakti, Mumbai, on
23.08.2023.
Defendant failed to appear in the Court. Hence, vide
Order Dt. 21.10.2023, the Suit was directed to proceed ex-parte.
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CS No.100168 / 2021,
Canara Bank – Shankar Judgment (Exh.23), 3 of 5
Evidence of Plaintiff :
5) Plaintiff adduced oral and documentary evidence as :
PW1, Exh.7 : Evidence-affidavit Sharanpreet Singh
Exh.9 : Loan Application, Dt. 20.05.2015
Exh.10 : Sanction Letter, Dt. 31.12.2015
Exh.11 : Customer copy, Dt. 31.12.2015
Exh.12 : Composite Hypothecation Agreement
Exh.13 : Receipt, Dt. 31.12.2015
Exh.14 : Particulars of Assets and Liabilities, Dt. 29.12.2015
Exh.15 : Letter of Authority, Dt. 31.12.2015
Art. A : Photocopy of Recall Notice, Dt. 01.03.2019
Exh.16 : Statement of Account
Exh.17 : Certificate of Banker’s Book of Evidence Act, 1891.
Exh. 18 : Certificate of Banker’s Book of Evidence Act, 1891.
Exh. 19 : Certificate under Information Technology Act, 2000
Exh. 20 : Particulars of Claim
Exh. 21 : Non-starter Report
Exh. 22 : Evidence closure pursis filed by plaintiff.
Points for determination :
6) Heard Adv. Ms. Sujata Dahigaonkar for plaintiff.
Perused Record. Points for determination, findings and reasons
are as follows :
Points
Findings
1. Is plaintiff entitled for recovery
as prayed?................................ Partly in Affirmative.
2. What Order?............................ As Final Order.
R E A S O N S
Reasons as to Point No. 1 & No. 2 :
7) Plaintiff examined its officer Sharanpreet Singh (PW1,
Exh.7). He deposed in accordance with pleadings from the Plaint
and claimed that, they have filed original loan related documents
as Loan Application, Sanction Letter, Composite Hypothecation
Agreement, Receipt, Particulars of Assets and Liabilities, Letter
of Authority at Exh. 9 to Exh. 15. These documents are original
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CS No.100168 / 2021,
Canara Bank – Shankar Judgment (Exh.23), 4 of 5
and they bear the signature of defendant. They prove the loan
transaction. However, defendant deliberately avoided repayment.
8) Despite service of Legal Notice and Writ of Summons,
defendant did not appear in the Suit to contend that, it has repaid
entire dues or that, for some reasons, they are not liable to make
repayment. Thus, after having knowledge of Suit, defendant has
kept oral and documentary evidence of plaintiff, unchallenged.
It leads to inference that, defendant admits the claim and
hence has decided, not to appear and not to challenge the claim.
9) On test of preponderance of probability, it is held that,
loan-transaction, as alleged by the plaintiff, had taken place and
that, defendant has defaulted the repayment. Therefore, plaintiff
is entitled for recovery of the claim amount, with interest.
Limitation :
10) Plaintiff claimed that, defendant was provided loan,
vide Sanction Letter Dt. 31.12.2015 (Exh. 10). Therefore, three
years limitation for the plaintiff to prefer the Recovery Suit, will
conclude on 30.12.2018.
Suit is filed on 04.03.2020. Hence, aspect of limitation
is taken for deliberation.
11) It is case of plaintiff that, defendant made last payment
on 15.12.2018. Plaintiff has filed Statement of Account at Exh.
16, supporting its case.
Statement of Account is not having any challenge from
defendant. Thereby, it is held that, defendant, by making said
part-payment on 15.12.2018, has renewed the liability and so also
the limitation.
Therefore, three years limitation for filing the present
Suit would be till 14.12.2021.
As the Suit is filed on 04.03.2020, it is held to be within
limitation.
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CS No.100168 / 2021,
Canara Bank – Shankar Judgment (Exh.23), 5 of 5
Interest:
12) Plaintiff has claimed interest @ 10.75 % per annum.
Perusal shows that, vide Sanction Letter (Exh.10, Dt.
31.12.2015) and other documents, defendants had agreed rate of
interest as 10.75% per annum. If parties have agreed on particular
rate of interest, then such rate of interest can be awarded.
13) In view of unchallenged oral and documentary evidence
of the plaintiff, the Suit is entitled for Decree. Hence, the Points
are so answered and the Suit is partly allowed, as follows :
ORDER
1. Commercial Suit No. 100168 / 2021, Canara Bank Vs
M/s. Shankar Travels, is partly decreed, with
proportionate cost.
2. Defendant, within three months from date of this Order,
shall pay, .3,37,948.05
₹
/- ( . Three Lakhs Thirty Seven
₹
Thousand Nine Hundred Forty Eight and Five Paise
Only) to the plaintiff, with interest @ 10.75 % per
annum from the date of filing of the Suit till its
realization.
3. Court fee, if any, be refunded to the plaintiff as per rule.
4. Decree be drawn up accordingly.
5. Judgment dictated and pronounced in Open Court.
6. Parties be informed about their right to challenge this
Judgment and period of limitation.
7. After compliance and period of Appeal, Shirestedar and
AS to consign Record of the Suit, to Record Room.
Mumbai
Dated : 07.02.2024 (Vijay S. Hingne)
Additional District Judge,
Court Room No.31 - Commercial Court,
City Civil & Sessions Court,
Mazgaon, Greater Mumbai
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