Final Order 1

Order Details: Ex-parte Judgement
Pdf Text: CS No.100661 / 2021
Bank of India – Sachin
Judgment (Exh.17) 1 of 5
MHCC010028392020 Suit Filed on : 04.03.2020
Arguments Heard : 16.10.2023
Decided on : 16.10.2023
Duration : 03 Y, 07 M, 13 Days
City Civil & Sessions Court, Greater Mumbai
Court Room No. 31
(Additional District Judge : Vijay S. Hingne, LL. M.)
Commercial Suit No. 100661 / 2021 Exhibit No. 17
Plaintiff : Bank of India (Nationalized Bank)
Head Office : Star House, Plot No. C-5,
G – Block, Bandra Kurla Complex,
Bandra (E), Mumbai 400 051
Branch Office : Bhandup West Branch,
1st floor, Madras Cafe Building,
Opp. Dreams Mall, L. B. S. Road,
Bhandup (W), Mumbai 400 078
Through Senior Manager Mr. Rohit Raj.
VERSUS
Defendant : Sachin Ashok Rungta
Proprietor : M/s. B. P. C. Juice Stall,
3A / 604, Dreams Residency, L.B.S. Marg,
Bhandup (W), Mumbai 400 078.
Appearances
Plaintiff
: Adv. Ashok V. Kode
Defendant
: Ex-parte.
Suit for Recovery of ₹. 4,42,793/-
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CS No.100661 / 2021
Bank of India – Sachin
Judgment (Exh.17) 2 of 5
J U D G M E N T
(Delivered on this 16th Day of October, 2023)
Suit is preferred for recovery of .	₹ 4,42,793/- with
interest @ 10.80 % p. a.
Case of Plaintiff :
2) Bank of India, Bhandup West Branch, Mumbai
(hereinafter,
plaintiff), is Nationalized Bank.
Defendant Sachin Ashok Rungta, Mumbai, Maharashtra
(hereinafter
defendant), applied for loan of . 5,00,000/-	₹ on
29.06.2017 for his Juice Stall. Accordingly, on 30.06.2017,
defendant executed loan documents such as Demand Promissory
Note L 434, Bearer Letter L 435, Installment Letter L 440 and L
516 multipurpose documents. Immediately, bank provided loan
of . 5,00,000/- with interest @	₹ 10.80 % to defendant. Thereafter,
defendant failed to repay loan amount. Hence, on 16.02.2019,
plaintiff issued notice asking defendant to make repayment.
Despite that, defendant failed to repay the loan amount. As per
Account Statement, defendant is liable to repay . 4,42,793/-	₹
with interest @ 10.80 % p. a. Hence, the Suit.
Defendant :
3) RPAD Summons (Exh.2) was issued against defendant.
It was returned by the Postal Authority with endorsement Dt.
25.04.2022, as
Unclaimed. Thereafter, defendant failed to appear.
Hence, vide Order Dt. 08.08.2023, Suit proceeded ex-parte.
Evidence of Plaintiff :
4) Plaintiff adduced oral and documentary evidence as :
PW1, Exh.3 : Evidence of Surendra Upadhyay, Manager
Exh.5 : Original Demand Promissory Note L434, Dt.
30.06.2017.
Exh.6 : Original Bearer Letter No. L435, Dt. 30.06.2017.
Exh.7 : Original Installment Letter No.L440, Dt. 30.06.2017
Exh.8 : Original L516 Multipurpose document executed by
defendant Dt. 30.06.2017
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Bank of India – Sachin
Judgment (Exh.17) 3 of 5
Exh.9 : Hypothecation Agreement Dt. 30.06.2017.
Exh.10 : Statutory Notice Dt.15.02.2019.
Exh.11 : Postal receipt Dt. 20.02.2019.
Exh.12 : Returned Envelope Dt.23.02.2019.
Exh.13 : Postal Acknowledgment Card.
Exh.14 : Authority Letter of Bank Dt.10.10.2023.
Exh.15 : Statement of Account of defendant.
Exh.16 : Evidence Closure pursis filed by plaintiff.
Points for determination :
5) Heard Adv. Shri Ashok V. Kode for plaintiff. Perused
Record. Points for determination, findings and reasons are as
follows :
Points
Findings
1. Is plaintiff entitled for recovery
as prayed?.................................... Partly Affirmative.
2. What Order?................................ As Final Order.
R E A S O N S
Reasons as to Point No. 1 & No. 2 :
6) Plaintiff bank claimed that, it has provided loan to the
defendant and accordingly defendant executed the documents at
Exh.5 to Exh. 9. According to plaintiff bank, these are original
documents and they bears signature of defendant.
7) Despite service of legal notice and Writ of Summons,
defendant did not appeared in the Suit. Thereby, defendant left
aforesaid oral and documentary evidence of plaintiff,
unchallenged.
It is not case from defendant that, he has repaid the
entire dues. It is also not case from defendant that, some legal
proceeding is pending, because of which defendant is not liable to
make repayment.
Despite having knowledge of the Suit, the defendant has
kept the oral and documentary evidence of the plaintiff,
unchallenged. It leads to inference that, the defendant do not want
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Bank of India – Sachin
Judgment (Exh.17) 4 of 5
to challenge the claim, but he admits the claim and hence he has
decided not to appear in the Suit.
8) Documents filed by the bank are in original. There is
nothing suspicious in those unchallenged documents. Hence, they
can be relied upon.
On the test of preponderance of probability, it is held
that, the loan transaction had taken place and that the defendant
has defaulted the repayment. Therefore, plaintiff is entitled for
recovery of the loan amount, with interest.
Limitation :
9) Perusal shows that, defendant was provided loan on
30.06.2017. Therefore, the plaintiff is required to prefer the Suit
within 3 years i.e. by 29.06.2020.
Suit came to be filed on 04.03.2020. Thereby, the Suit is
within limitation.
Regarding interest:
10) Plaintiff has claimed interest @ 10.80 % per annum.
Perusal shows that, vide Hypothecation Agreement (Exh.9, Dt.
30.06.2017) and other documents, defendant had agreed rate of
interest as 10.70 % per annum. If parties have agreed on
particular rate of interest, then such rate of interest can be
awarded.
11) For all above reasons, plaintiff is entitled for recovery of
claim amount. Hence, Points are so answered. Resultant, the Suit
is entitled to be partly allowed, as follows :
ORDER
1. Commercial Suit No. 100661 / 2021, Bank of India
Sachin Ashok Rungta, is partly allowed with
proportionate cost.
2. Defendant Sachin Ashok Rungta, within three months
from the date of this Order, shall pay . 4,42,793/- ( .
₹
	₹
Four Lakhs Forty Two Thousand Seven Hundred and
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Bank of India – Sachin
Judgment (Exh.17) 5 of 5
Ninety Three Only) to plaintiff-bank with interest @
10.70 % per annum from date of filing of the Suit, till its
actual realization.
3. Court fee, if any, be refunded to the plaintiff as per rule.
4. Decree be drawn up accordingly.
5. Judgment pronounced in Open Court.
6. Plaintiff side be informed about its right to challenge
this judgment and period of limitation for it.
7. After compliance and period of Appeal, Shirestedar and
AS to consign Record of the Suit, to Record Room.
Mumbai
Dated : 16.10.2023 (Vijay S. Hingne)
District Judge, Court Room No.31
City Civil & Sessions Court,
Greater Mumbai
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