Order 1

Order Details: Ex-parte Judgement
Pdf Text: :1: Summary Suit No.380/2018
Received on : 03.03.2018
Registered on : 23.03.2018
Decided on : 22.03.2019
Duration : Y M D
01 00 21
IN THE BOMBAY CITY CIVIL COURT AT MUMBAI
SUMMARY SUIT NO. 380 OF 2018
CNR NO.: MHCC010030942018
IDBI Bank Ltd. ]
A Banking Company, Registered under ]
Companies Act 1956 (1 of 1956) and also ]
A Banking Company under Section 5 ( C) of ]
the Banking Regulation Act 1949 ]
(10 of 1049) having its Regd. Office at ]
IDBI Tower, World Trade Center Complex, ]
Cuffe Parade, Colaba, Mumbai – 400 005 and ]
Branch Office at Shrirang Niwas, “B” Wing, ]
Gopal Krishna Gokhale Marg, Mulund (East), ]
Mumbai – 400 081 known as Mulund (East) ]
Branch, Represented by its Branch Manager ]
T. Sairam. ]...Plaintiff
Versus
1. M/s. Sai Sanskar Travels ]
2. Yogesh Bhagwan Nemane ]
Proprietor of M/s. Sai Sanskar Travels ]
Adult, Indian Inhabitant having their ]
address at Room No.483, Mangalwadi ]
Juhu Tara Road, Opp. Union Bank of ]
India, Kupal High School, Santacruz ]
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(West), Mumbai – 400 049. ]
3. Vaibhav Keshav Sawant ]
Adult Indian Inhabitant having his ]
address at Room No.8, Babaji Patil ]
Chawl, Gaothan Road, Bhandarwada, ]
Behind Father Angelo High School, ]
Malad (West), Mumbai – 400 064. ]...Defendants.
Appearances:
Advocate Hemangi Kamgar for the Plaintiff.
Defendants Exparte.
CORAM : HER HONOUR JUDGE
S.P. AGARWAL
(C.R.NO.28)
DATED : 22nd MARCH, 2019.
[ J U D G M E N T ]
Allegations of plaintiff in short is as under :
1. Plaintiff has stated that the defendant No.1 is Principal
Borrower, defendant No.2 is Sole Proprietor of defendant No.1 and
defendant No.3 stood as Guarantor, guaranteeing due repayment of
ultimate liability of defendant No.1 who availed Term Loan Facility
under the Scheme of Small Road and Water Transport Operators to the
tune of Rs.6,50,000/ which was sanctioned on the terms and
conditions as mentioned in Sanction Letter dated 24.12.2014 for
purchase of Four Wheeler Vehicle for Commercial Purpose. Plaintiff has
further stated that said Loan was repayable by 60 Equated monthly
installments comprising of 59 monthly installments of Rs.10,834/ and
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last installment of Rs.10,794/ Commencing from 15.03.2015.
2. Plaintiff has further stated that defendant initially made certain
part payment but ultimately did not maintain the account regularly and
as such the account was declared NPA on 13.11.2016. Plaintiff has
further stated that inspite of repeated demands made by them and
inspite of repeated promises given by defendants, the defendants failed
and neglected to make payment thereof. The plaintiffs ultimately by
their Notice dated 22.01.2018 called upon defendants to pay to the
plaintiffs their liability with further interest as mentioned in the Notice.
Inspite of the same defendant did not make payment.
3. Plaintiff has further stated that defendants are jointly and
severally liable to pay in Term Loan Account amount of Rs.4,43,954/
being the principal amount lying due and payable as on 17.02.2018.
The defendants are also liable to pay interest accrued but not charged
thereon till filing of the suit amounting to Rs.81,976.37 plus Penal
Interest of Rs.3,900/ plus other charges of Rs.200/ in all Rs.
5,30,030.37 as more particularly stated in defendant's Statement of
Account with plaintiffs Books of Account. Plaintiff has further stated
that they are entitled to claim from the defendants in Term Loan
Account amount of Rs.4,43,954/ being the principal amount as on
17.02.2018 plus interest @ 11.25% per annum with monthly rest till
filing of the suit amounting to Rs.81,976.37 plus Penal Interest @ 2%
per annum amounting to Rs.3,900/ plus other charges of Rs.200/ in
all Rs.5,30,030.37 as more particularly set out in the Particulars of
Claim. Therefore, plaintiff has filed the present suit.
4. Defendant Nos. 1 to 3 failed to appear in the suit, therefore, suit
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has proceeded Exparte against all of them.
5. Heard the Ld. Advocate for the plaintiff.
6. Following points arise for determination and their findings
followed by reasons are as stated below.
Sr. No. POINTS FINDINGS
1. Whether plaintiff is entitled to get
amount of Rs.5,30,030.37 ps. from
defendant along with interest @
11.25% p.a. on the principal sum of
Rs.4,43,954/ from the date of filing
of the suit till its realisation ?
...Partly in the
affirmative.
2. What order and Decree ? ...As per final order
REASONS
7. Plaintiff has filed evidence affidavit of Nalini Dalvi (P.W.1)
below Exh.6. Plaintiff relied upon the following documents as
documentary evidence which are as under :
Sr.
No.
Exhibits Particulars
1. Exh.8 Sanctioned Letter dated 24.12.2014
2. Exh.9 Demand Promissory Note dated 24.12.2014
3. Exh.10 Demand Promissory Note Delivery Letter dated
24.12.2014
4. Exh.11 Hypothecation Cum Loan Agreement dated
24.12.2014
5. Exh.12 Common Guarantee Deed dated 24.12.2014
6. Exh.13 Plaintiffs Notice dated 22.01.2018
7. Exh.14 Statement of Account with IT Certificate
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8. Exh.15 Authority Letter dated 21.06.2018
AS TO POINT NOS. 1 AND 2:
8. Plaintiff has filed evidence affidavit of Nalini Dalvi (P.W.1)
below Exh.6. She has stated in her evidence affidavit that the defendant
No.1 is the Principal Borrower, defendant No.2 is Sole Proprietor of
defendant No.1 and defendant No.3 stood as Guarantor, guaranteeing
due repayment of ultimate liability of defendant Nos.1 and 2 who
availed Term Loan Facility. She has further stated that the defendant
Nos. 1 and 2 approached plaintiff's Bank for the Term Loan Facility
under the Scheme of Small Road and Water Transport Operators to the
tune of Rs.6,50,000/, which was sanctioned on the terms and
conditions as mentioned in Sanction Letter dated 24.12.2014 for
purchase of four wheeler vehicle for Commercial Purpose. She has
further stated that inspite of repeated demands made by plaintiffs Bank
and inspite of repeated promises given by defendants, the defendants
failed and neglected to make payment thereof. She has further stated
that plaintiffs Bank ultimately issued Notice dated 22.01.2018 called
upon defendants to pay to the plaintiffs their liability with further
interest as mentioned in the Notice. She has further submitted that
inspite of the same defendants did not make payment. She has further
stated that defendants are jointly and severally liable to pay in Term
Loan Account amount of Rs.4,43,954/ being the principal amount lying
due and payable as on 17.02.2018. The defendants are also liable to
pay interest accrued but not charged thereon till filing of the suit
amounting to Rs.81,976.37 plus Penal Interest of Rs.3,900/ plus other
charges of Rs.200/ in all Rs. 5,30,030.37 as more particularly stated in
defendant's Statement of Account with plaintiffs Books of Account
certified as per the Bankers Books of Evidence Act. She has further
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stated that defendants are liable to pay the sum of Rs.4,43,954/ being
the principal amount as on 17.02.2018 plus interest @ 11.25% per
annum with monthly rest till filing of the suit amounting to
Rs.81,976.37 plus Penal Interest @ 2% per annum amounting to
Rs.3,900/ plus other charges of Rs.200/ in all Rs.5,30,030.37 in
respect of the Term Loan Account as per the Particulars of Claim. She
has further stated that the plaintiffs Bank are also entitled to claim
further interest @ 11.25% per annum with monthly rest plus Penal
Interest @ 2% per annum from date of filing of the suit till payment.
9. Plaintiff has adduced Sanctioned Letter, Demand Promissory
Note, Demand Promissory Note Delivery Letter, Hypothecation Cum
Loan Agreement dated 24.12.2014, Common Guarantee Deed,
Plaintiff's Notice and Statement of Account with IT Certificate on record
as documentary evidence. Defendants have failed to challenge all the
averments in the plaint and evidence affidavit of plaintiff. The evidence
of plaintiff is corroborated by documentary evidence. Due to all these
circumstances, plaintiff has proved that he is entitled to get sum of
Rs.5,30,030.37 ps. from the defendants.
10. It appears that as per Section 34 of the Code of Civil Procedure,
it will be proper to direct defendants to give interest @ 9% p.a. on the
amount of Rs.4,43,954/ from the date of filing of the suit till its
realisation. Hence, answer point No.1 partly in the affirmative and pass
following Order:
ORDER
1. Suit is partly decreed with cost.
2. Defendant Nos. 1 to 3 are jointly directed to pay amount of
Rs.5,30,030.37 ps. to plaintiff along with interest @ 9% p.a.
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on the sum of Rs.4,43,954/ from the date of filing of the suit till
its realisation.
3. Decree be drawn accordingly.
4. Court fee be refunded as per rules.
(S.P. AGARWAL)
Judge,
Date: 22.03.2019. City Civil Court,
Gr. Bombay.
Dictated on : 22.03.2019
Transcribed on : 22.03.2019
Signed on : 22.03.2019
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CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER.”
30.03.2019 At 3:37 p.m. Mr. Subhash Sukhdeo Poul
UPLOAD DATE AND TIME NAME OF STENOGRAPHER
Name of the Judge (With Court
Room No.)
HHJ Ms. S.P. Agarwal
(C.R.NO.28)
Date of pronouncement of
Judgment/Order
22.03.2019
Judgment/Order signed by P.O. on 22.03.2019
Judgment/Order uploaded on 30.03.2019
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