Final Order 1

Order Details: Other
Pdf Text: 1
Received on : 03.02.2020
Registered on : 03.02.2020
Decided on : 27.11.2021
Duration : 01Y 09M 24D
EXHIBIT10
IN THE BOMBAY CITY CIVIL COURT AT BOMBAY
SUMMONS FOR JUDGMENT NO.44 OF 2020
( CNR No.MHCC010029572020)
IN
SUMMARY SUIT NO. 257 OF 2017
State Bank of India, a Corporation
constituted under the State Bank of India
Act, 1955 having their head office at
New Administrative Building, Madame
Cama Road, Nariman Point, Bombay
400021 and on of their Branch office at
Deonar Branch, Sion Tromby Road,
Govandi, Mumbai 400088 … Plaintiff
Vs.
Mr.Baban Mahadeo More
Proprietor of M/s.More Travels
Age 61 years, Indian Inhabitant, residing
at Chawl NO.275, Room NO.3572,
Tagore Nagar, Group NO.2, Near Tamil
Church Lane, Vikhroli (East), Mumbai
400083 … Defendants
Advocate Ms.Shilpa Hadwale for the plaintiff.
Advocate Mr.Bhosale for the Defendant.
CORAM : HER HONOUR ADHOC JUDGE
SMT. C.V. PATIL
(C.R.NO.15)
DATE : 27th November 2021
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JUDGMENT
1. This Summons for Judgment is filed by plaintiff. He has reiterated
facts mentioned by him in the plaint. The defendant by name Baban
Mahadeo More, has made an application for vehicle loan. He has made
an application on 122013. As per his application the bank has
sanctioned vehicle loan of Rs.7,90,000/ on 28/2/2013. Thereafter, the
defendant purchased vehicle and executed hypothecation agreement. It
was boundand for defendant to repay the loan by 57 instalments with
interest agreed between the parties. The defendant has repaid some
installments but thereafter he was in default. Therefore, the Bank has
seized hypothecated vehicle and sold it in public auction. The amount
of Rs.6,61,989/ was due against defendant as on 29/9/2016. The
interest therein is Rs.2,93,419/, even after deducting amount of vehicle
Rs.9,55,408/ is due against defendant. The plaintiff has sent notice to
him but defendant failed to pay the amount. Therefore, the plaintiff has
filed suit for recovery of due amount with interest at the rate of 13.40%
p.a.
2. The defendant has filed reply to the Summons For Judgment.
Defendant strongly opposed Summons for Judgment on the ground that
the suit is not filed by plaintiff within three years from the date of cause
of action. However, Summons for Judgment is also not filed within
time. The defendant further submitted that the plaintiff had sold vehicle
in auction for Rs.6,50,099/ on 15/11/2018 without following
procedure. However the defendant has paid Rs.2,60,360/ alongwith
interest therefore, he has calculated the amount paid by him and the
amount of vehicle. Now, as per the case of defendant Rs.1,20,450/ is
paid the excess amount to plaintiff, which is due from plaintiff.
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3. The defendant has also filed an application with same cause of
action and asked permission of leave to defend the suit. Said application
has been strongly opposed by plaintiff.
4. Heard learned advocate of plaintiff and defendant. Considering
contents in plaint and defence raised by defendant, following points
arise for consideration to which I have given reasons before them:
Sr.
No.
POINTS FINDINGS
1 Does plaintiff entitled for the relief asked in
the summons for judgment ?
In the
negative
2. Does defendant entitled for leave to defend
the suit unconditionally ?
In the Affirmative
3 What Order ? Summons for
Judgment is rejected
R E A S O N S
AS TO POINT NOS.1 AND 2:
5. It is the case of the plaintiff that the defendant had asked for
vehicle loan accordingly Rs.7,90,000/ has been sanctioned to him. The
same fact has been admitted by defendant. As per the case of the
plaintiff the defendant is defaulter. Therefore, the plaintiff bank has
seized his hypothecated vehicle. That vehicle is sold in auction. The
amount of vehicle is shown in account extract. The vehicle was seized
on 6/4/2016 for Rs.1,30,000/ the same is deducted from the due
amount of defendant. So far as seizure of vehicle by plaintiff is
concerned the said fact is admitted by defendant but the defendant
came with the story that seized vehicle has been sold for Rs.6,50,099/.
The defendant has produced relevant documents on record. He has
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asked those documents from RTO, Thane, under Right to Information
Act. As per that documents hypothicated vehicle has been sold on
15/11/18. He has produced relevant documents from RTO Thane. The
defendant has also produced account extract of plaintiff bank from
account extract, it appears that the defendant has paid amount to
plaintiff till 6/6/2014. Here the main crux between the parties is the
auction value of vehicle. It is the case of plaintiff that they have sold
vehicle for Rs.1,30,000/. The plaintiff has not produced any documents
to confirm that statement. Only said amount has shown deducted from
the account of defendant. On the contrary, the defendant has produced
relevant documents to confirm the statement of value that is
Rs.6,50,099/ that is auction value of vehicle. This is the controversy
between the parties when the value of vehicle is as per statement of
defendant then certainly the question will arise, was there any amount
due against defendant after deducting Rs.6,50,099/ from due amount
of defendant. This is the main crux between the parties. The plaintiff
failed to give reply to the statement and documents produced by
defendant on record even at the time of argument.
6. The suit is for recovery of due amount against defendant. The
main point of auction value of amount is disputed. That issue needs to
be decided on merit. Though the defendant has admitted loan but as
per his statement, documents on record, at this stage it is not desirable
to allow Summons for Judgment in favour of plaintiff. On the other
hand the question of limitation, sale amount of hypothicated vehicle
needs to be decided on merit. In such circumstances, Summons for
Judgment needs to be rejected.
7. The defendant has asked leave to defend unconditionally. He has
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raised issue of cause of action and has submitted that he has already
paid amount to plaintiff. He stated that he has paid excess amount to
plaintiff. Therefore, he is entitle to recover his excess amount from
plaintiff. Considering the controversy between the parties defence
raised by defendant, it is necessary to allow the defendant to defend the
suit unconditionally. Accordingly, I answer the point no.1 in the
negative and point no.2 in affirmative and following order is passed:
O R D E R
1. Summons for Judgment No.44/2020 stands
rejected.
2. Defendant is allowed to defend the suit
unconditionally.
3. The Summons for Judgment No.44/2020 is
disposed of accordingly.
(C.V.Patil)
Adhoc Judge,
City Civil Court,
Date: 27.11.2021 Gr.Mumbai.
Dictated on: 27.11.2021
Typed on : 29.11.2021
Signed on : 30.11.2021.
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“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE
ORIGINAL SIGNED JUDGMENT/ORDER.”
Upload Date Upload Time Name of Stenographer
30/11/2021 4.30p.m. Mrs.Jyoti Mane
Name of the Judge (With Court Room No.) HHJ Smt. C.V.Patil (CR
15)
Date of Pronouncement of
JUDGEMENT /ORDER
27/11/2021
JUDGEMENT /ORDER signed by P.O. on 30/11/2021
JUDGEMENT /ORDER uploaded on 30/11/2021
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