Final Order 1

Order Details: Ex-parte Judgement
Pdf Text: 1 Judgment in Com. Suit No. 44/2021
Lodged on : 12.03.2020
Admitted on : 15.02.2021
Decided on : 16.03.2023
Duration : Y M D
3 0 4
COMMERCIAL SUIT NO. 44 OF 2021
CNR NO. : MHCC010031442020
Exh.9
Canara Bank a body corporate ]
constituted and functioning under the ]
Banking Companies (Acquisition and ]
Transfer of Undertakings) Act, 1970 ]
having its Head Office at 112, J.C. Road, ]
Bangalore, Karnataka State and having ]
one of their branch office at 10, Homji ]
Street Branch, Fort, Mumbai 400 023. ] ...Plaintiff
Versus
M/s. Nibhish Travel ]
A Proprietary concern, through its ]
Proprietor : Mr. Vijay Savalaram Panchal ]
Aged 43 years, Indian Inhabitant, ]
At Room No. 4, Ground Floor, ]
Peru Chawl No. 2, Dattaram Khamkar ]
Marg, Lalbaug, Parel, Mumbai 400 012. ] ...Defendant
Appearance:
Adv. Sujata Dahigaonkar for Plaintiff.
Defendant exparte.
CORAM : SHRI. A.S.SALGAR
ADHOC JUDGE, (C.R.NO.31)
DATED : 16th MARCH 2023
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2 Judgment in Com. Suit No. 44/2021
J U D G M E N T
(Delivered on : 16.03.2023)
This is a suit filed by the plaintiff bank for the recovery of
the amount of Rs.3,85,803.14ps. from the defendant along with interest
at the rate of 11.50% per annum from the date of filing of the suit till its
realization.
2. Brief facts of the plaintiff's case is as under:
The plaintiff is a Nationalized bank, a body corporate
constituted and functioning under the Banking Companies Act, having
its Head Office at Bangalore and one of its branch office is at Fort,
Mumbai. The defendant approached the plaintiff bank for grant of Term
Loan Facility of Rs.4,45,000/on 20.02.2016 for the purpose of
purchase of vehicle being Maruti Suzuki Wagon R for commercial
purpose. The defendant has executed various documents in favour of
the plaintiff bank. The amount of Rs.4,45,000/ was transferred in the
account of the defendant on 20.02.2016. The defendant was not at all
regular in repaying the monthly installment. Therefore, the account of
defendant was treated as NPA on 02.05.2017. As defendant failed and
neglected to pay the due amount, the plaintiff bank through their
Advocate issued a legal notice to the defendant on 12.12.2018 calling
upon the defendant to pay the outstanding amount with interest. As per
Statement of Account, as on 10.03.2020 the defendant is liable to pay a
sum of Rs.3,85,803.14ps. together with interest thereon at the rate of
11.50% per annum with monthly rests. Hence, the plaintiff has filed the
present suit against the defendant and prayed that the defendant be
directed to pay to the plaintiff a sum of Rs.3,85,803.14ps. together with
interest at the rate of 11.50% per annum with monthly rests from the
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3 Judgment in Com. Suit No. 44/2021
date of filing of the suit till its realization.
3. The suit summons was issued to the defendant through
paper publication. The summons was duly published in two
newspapers. The Writ of Summons was duly served to the defendant,
but the defendant remained absent. Hence, as per order passed on
13.01.2023, the suit proceeded exparte against the defendant.
4. In support of the pleading, the plaintiff examined its
Branch Manager namely Mr. Vinay K. Vaidhya at Exh.5. The plaintiff
filed documentary evidence along with list Exh.6. The documentary
evidence are at Exh.7/1 to 7/9. Evidence closure pursis of the plaintiff
is at Exh.8.
5. After considering the pleadings of the plaintiff and evidence
on record, following points arise for my determination and I have
recorded my finding against each of them with the reasons to follows:
POINTS FINDING
1) Whether plaintiff bank proves
that an amount of
Rs.3,85,803.14ps. is outstanding
from the defendant?
In the affirmative
2) Whether plaintiff bank is entitled
to recover an amount of
Rs.3,85,803.14ps. from the
defendant? If yes, at what rate of
interest?
In the affirmative.
At the rate of 10.95% per annum
on the principal amount.
3) What order and decree? As per final order.
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4 Judgment in Com. Suit No. 44/2021
R E A S O N S
6. Heard Learned Advocate Sujata Dahigaonkar for the
plaintiff at length.
As to Point Nos.1 & 2
7. It is the case of the plaintiff that on the request of the
defendant, the plaintiff bank has sanctioned the Term Loan of
Rs.4,45,000/ to the defendant for the purchase of vehicle. The
defendant executed various documents in favour of the plaintiff bank
namely Loan Application, Sanction letter, Composite Hypothecation
Agreement, Particulars of Assets and Liabilities, Letter of Authority to
debit monthly installments and Confirmation of Delivery of Machinery.
The defendant failed and neglected to repay the loan amount.
According to the plaintiff, the defendant is bound to pay a sum of
Rs.3,85,803.14ps. to the plaintiff with interest. At the outset, it is to be
noted that the defendant has failed to file Written Statement on record.
The non appearance of the defendant despite service of summons
inferred that the defendant admits the suit claim.
8. In support of the pleading, the plaintiff bank examined its
Branch Manager namely Mr. Vinay Vaidhya at Exh.5. His evidence is in
consonance with the averments made in the plaint. This witness has
specifically deposed that the loan was granted to the defendant on
20.02.2016, but the defendant failed to repay the loan amount.
According to this witness, an amount of Rs.3,85,803.14ps. is due from
the defendant. The aforesaid oral evidence of the plaintiff is not
subjected to the crossexamination. The defendant failed to take cross
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5 Judgment in Com. Suit No. 44/2021
examination of the plaintiff. Therefore, the oral evidence of the plaintiff
remained unchallenged. Hence, I have no reason to disbelieve the
version of PW1.
9. The oral evidence of the plaintiff is supported by
documentary evidence. The relevant documents submitted by the
plaintiff are at Exh.7/1 to 7/9. On perusal of bank statement at
Exh.7/8, it is clear that an amount of Rs. 3,85,803.14ps. is due from the
defendant on 10.03.2020. As the defendant failed to repay the loan
amount, the plaintiff was constrained to issue a legal notice to the
defendant. The copy of legal notice is at Exh.7/7. The oral as well as
documentary evidence tendered by the plaintiff is also not challenged
by the defendant. Hence, it can be said that the oral as well as
documentary evidence tendered by the plaintiff goes to show that an
amount of Rs. 3,85,803.14ps. is outstanding from the defendant. Hence,
the plaintiff bank is entitled to recover the said amount from the
defendant with interest.
10. So far as the rate of interest is concerned, the plaintiff bank
has claimed interest at the rate of 11.50% per annum over the principal
amount. The documentary evidence tendered by the plaintiff shows that
the agreed rate of interest between the parties is 10.95% per annum. In
my view, the plaintiff is entitled to recover the outstanding amount of
Rs.3,85,803.14ps. along with interest at the rate of 10.95% per annum.
Hence, I answer point no. 1 in affirmative and point no. 2 accordingly.
11. In the light of aforesaid discussion, it is concluded that the
plaintiff has sufficiently established that an amount of
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6 Judgment in Com. Suit No. 44/2021
Rs. 3,85,803.14ps. is due from the defendant. Hence, the plaintiff bank
is entitled to recover the outstanding amount of Rs.3,85,803.14ps. from
the defendant alongwith interest at the rate of 10.95% per anuum on
the principal amount from the date of filing of the suit till its
realization. Hence, the suit needs to be decreed. Hence, I pass the
following order:
ORDER
1) Commercial Suit No. 44 of 2021 is decreed with costs.
2) The defendant do pay an amount of Rs.3,85,803.14ps. (Rs. Three
Lakhs Eighty Five Thousand Eight Hundred Three and Fourteen
Paise Only) to the plaintiff bank along with interest at the rate of
10.95% per annum on the principal amount from the date of
filing of the suit till its realization within three months from the
date of this decree.
3) Defendant shall bear the cost of the suit.
4) Court fee, if any, be refunded to the plaintiff as per rule.
5) Decree be drawn up accordingly.
(Judgment pronounced in the open Court)
Dated : 16.03.2023 (A.S. Salgar)
Adhoc Judge,
City Civil Court
Gr. Mumbai.
Dictated on : 16.03.2023
Transcribed on : 20.03.2023
Signed on : 20.03.2023
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7 Judgment in Com. Suit No. 44/2021
CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER”
UPLOAD DATE TIME NAME OF STENOGRAPHER
21.03.2023 12.30 p.m. Prachi Y. Potdar
Stenographer Grade I
Name of the Judge HHJ Shri. A.S. Salgar
(C.R.NO. 31)
Date of Pronouncement of
Judgment/Order.
16.03.2023
Judgment/order signed by P.O on 20.03.2023
Judgment/order uploaded on 21.03.2023
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