Final Order 1

Order Details: Ex-parte Judgement
Pdf Text: 1 Comm. Suit No.1082/2021
MHCC010028742020 Presented on : 05/03/2020
Registered on : 22/06/2021
Decided on : 15/02/2023
Duration : 1Y/7M/24D
Exh.31
IN THE CITY CIVIL COURT AT MUMBAI.
(Court RoomNo.32)
COMMERCIAL SUIT No.1082/2021
Bank of Baroda, a Body Corporate,
constituted under the Banking Companies
(Acquisition & Transfer of Undertakings)
Act V of 1970, having its Head Office at
Bank of Baroda Building Mandvi, Vadodara,
Gujarat 390006 and having one of its
Branch located at Geeta Building, Pandita
Ramabai Road, Gamdevi, Mumbai 400007,
India.
...PLAINTIFF
VERSUS
(1) Salim Tours & Travels
MHB 900 Chawal No.58, Bharat Nagar, BKC
Bandra East, Mumbai 400051
...DEFENDANTS
(2) Mr. Mohammad Nadim Shaikh,
Prop. of Salim Tours & Travels, Room No.
112/8, Rahivashi Sangh, Patthar Nagar,
Bharat Nagar, Bandra (E), Mumbai 400051.
Smt. Neetu Kaur h/f Smt. Veena Kumari, learned Advocates for
plaintiff.
Defendant exparte.
CORAM : JUDGE SHRI. N.P. TRIBHUWAN
E XP A R T E J U D G M E N T
(Delivered on 15/2/2023)
This is a suit for recovery of sum of Rs.5,44,738/ with
further interest of 10.50% p.a. with monthly rests from the date of suit
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2 Comm. Suit No.1082/2021
till realization of the amount.
2. It is case of plaintiff that it is a body corporate under the
Banking Companies (Acquisition and Transfer of Undertakings) Act,
1970. Defendant No.2 is Proprietor of defendant No.1. He as a
proprietor of defendant no.1 approached to the plaintiff on
27/11/2016 and applied for term loan of Rs.6,55,000/ under Pradhan
Mantri Mudra Yojna Loan Scheme for the purpose of purchasing vehicle
– Hyundai Xcent Base ABS Diesel. On 29/11/2016 plaintiff has
sanctioned him the said loan. In consideration of sanctioning the said
term loan the defendant executed documents in favour of plaintiffs
namely (i) Attestation Memo dt.5/12/2016, (ii) Demand Promissory
Note dt.5/12/2016, (iii) Declaration cum undertaking dt.5/12/2016,
(iv) Letter of Undertaking dt.5/12/2016, (v) Letter of instalment with
acceleration clause dt.5/12/2016, (vi) Instrument of hypothecation of
vehicle dt.5/12/2016 (vii) Letter of authority to may payment directly
to dealer dt.5/12/2016.
3. After execution of aforesaid documents, the loan was
disbured on 13/12/2016. Defendant availed the loan and purchased the
vehicle – Hyundai Xcent Base ABS Diesel. As per terms of agreements,
the defendants are liable to make the payment in 60 equal monthly
installments of Rs.14,079/with interest @ 10.50% p.a.
4. Defendants failed to pay monthly installments. Plaintiff by
its various letters from time to time called upon defendants to pay due
installments and interest and to regularize the loan account. However,
they failed and neglected to repay the loan. Therefore, the loan account
was classified as NPA. On 14/1/2019, 19/6/2019 and 18/10/2019
plaintiff has send demand notice to defendants but they failed to repay
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3 Comm. Suit No.1082/2021
the loan. As on the date of filing of the suit defendants are in
outstanding principal loan sum of Rs.4,77,778/ + interest of
Rs.63,668/ + penal interest of Rs.3,291/ (Total Rs.5,44,738/).
5. Defendants are served with suit summons as per service
affidavit Exh.13 but they did not appear. Hence, suit proceeded exparte
against them.
6. On above facts following points arise for determination and
this court and recorded findings thereon for the reasons stated as under.
POINTS FINDINGS
1. Does plaintiff prove that it has advanced
term loan of Rs.6,55,000/ to plaintiff ? …Yes
2. Does plaintiff prove that defendants are in
outstanding loan of Rs.5,44,738/ ? …Yes
3. Whether plaintiff is entitled for the relief
claimed ?
…Yes
4. What order and decree? ...As per final
order.
REASONS
AS TO POINT Nos.1 to 3:
7. Heard learned counsel of Plaintiff. Plaintiff has examined
its Manager (PW1 Pradeep Gupta) to prove its case. He reproduced all
content of plaint in his chiefexamination. His evidence is supported by
documentary evidence (Exh.17 to 29) as under : Loan application
dtd.27/11/2016, Sanction letter dd.29/11/2016, Attestation memo
dtd.5/12/2016, Demand promissory dtd.5/12/2016, Declaration cum
undertaking cum authority dtd.5/12/2016, Draft undertaking
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4 Comm. Suit No.1082/2021
dtd.5/12/2016, Letter of installment with acceleration clause
dtd.5/12/2016, Instrument of hypothecation of vehicle dtd.5/12/2016,
Letter of authority to make payment directly to the dalers
dtd.5/12/2016, Tax invoice and receipt, Legal notice dtd.14/01/2019,
19/06/2019, 18/10/2019, Xerox copy of A.D. card of registered post,
Staement of account, Staement of claim and I. T. Certificate.
8. In view of evidence of PW1 (Manager of plaintiff) and
documentary evidence, it becomes clear that on the request of
defendants, the plaintiff has sanctioned them term loan of
Rs.6,50,000/ for purchasing vehicle on 29/11/2016. On 5/12/2016
defendant no.2 being proprietor of defendant no.1 has executed
hypothecation agreement and above other documents in favour of
plaintiff. It seems that defendant agreed to repay loan with interest @
10.50 % p.a. Statement of account supports the testimony of PW1.
Statement of account shows that the defendants are in outstanding
principal loan sum of Rs.4,77,778/ + interest of Rs.63,668/ + penal
interest of Rs.3,291/ (Total Rs.5,44,738/).
9. Evidence of PW1 remained unchallenged. His evidence is
supported by documentary evidence mentioned in para supra. There is
no reason to disbelieve his testimony. Hence, plaintiff succeed to prove
that it has advanced above mentioned loan to defendant with
conditions. The principal loan sum of Rs.4,77,778/ + interest of
Rs.63,668/ + penal interest of Rs.3,291/ (Total Rs.5,44,738/) is due
and payable by defendants to plaintiff. Therefore, plaintiff is entitled for
the recovery of the same with interest 10.50% p.a. from the date of suit
till realization of amount. Hence, I answered point Nos.1 to 3 as above.
Hence, I pass the following order.
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5 Comm. Suit No.1082/2021
ORDER
1. Suit is decreed with costs.
2. The defendants are jointly and severally directed to pay
to plaintiff the amount of Rs.5,44,738/.
3. The defendants are jointly and severally directed to pay
the plaintiff interest @ 10.50% p.a. on principal sum of
Rs.4,77,778/ from the date of suit till realization of the
said amount.
4. Decree be drawn up accordingly.
Date : 15/2/2023
(N.P. Tribhuwan)
Judge, City Civil Court,
Mumbai. C.R.No.32
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6 Comm. Suit No.1082/2021
Dictated online on : 15/02/2023.
Checked on : 15/02/2023.
Signed on : 15/02/2023.
CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER”
16/02/2023. Mrs. Rupali S. Bhor
UPLOAD DATE AND TIME NAME OF STENOGRAPHER
Name of the Judge(with CR No.) HHJ SHRI. N. P. TRIBHUWAN
(C.R.No.32)
Date of pronouncement of Order 15/02/2023.
Order signed by P.O. on 15/02/2023.
Order uploaded on 16/02/2023.
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