Final Order 1

Order Details: Ex-parte Judgement
Pdf Text: Presented on 08/03/2018
Registered on 18/04/2018
Decided on 17/01/2025
Duration 06Y: 10M:09 D
Exhibit 18
IN THE CITY CIVIL COURT AT MAZGAON, MUMBAI
SUMMARY SUIT NO. 510 OF 2018
(CNR NO. MHCC01-003313-2018)
Mr. Jitendra Kantilal Shah
Age : 69, Occupation: Professional Service ]
Residing at G/34 Tarabaug Estate ]
Raja Rammohan Roy Marg, Charni Road ]
Mumbai-400 004. ]...Plaintiff
Versus
1. M/s. Chandrabhaga Co-oprative Milk ]
And Milk Products Processors Sangh Ltd. ]
Add: Pragati Vidyala, Gramsevak Colony ]
Balepir, Beed, Distric: Solhapur, ]
Maharashtra. ]
Also having address: ]
Shop No.7, 5-A, Jogeshwari Mata ]
Co-op. Housing Society, Sai Siddhi ]
Complex, Western Express Highway, ]
Mumbai-400060. ]
2. Chandrabhaga Sahkari Dudh Utpadak ]
Vapuravata Sangh Maryadit ]
Add: Pragati Vidyala, Gramsevak Colony ]
Balepir, Beed, Distric: Solhapur, ]
Maharashtra. ]
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2 SUM SU NO. 510/2018
Also having address: ]
Shop No.7, 5-A, Jogeshwari Mata ]
Co-op. Housing Society, Sai Siddhi ]
Complex, Western Express Highway, ]
Mumbai-400060. ]
3. Mr. Ganesh Babasaheb Khande ]
Director of M/s. Chandrabhaga Co-oprative Milk ]
And Milk Products Processors Sangh Ltd. ]
Age 35 years, Occ: Business ]
Add: 805, Bining Green Tower, Gilbirt Hill Road, ]
Near, Bhavans College Andheri(West), ]
Mumbai-58. ]
4. Mr. Vishnu Vilas Thorve ]
Director of M/s. Chandrabhaga Co-oprative Milk ]
And Milk Products Processors Sangh Ltd. ]
Age 35 years, Occ: Business ]
Add: 805, Bining Green Tower, Gilbirt Hill Road, ]
Near, Bhavans College Andheri(West), ]
Mumbai-58. ]
5. Smt. Satyabhamabai Ramkrishna Bangar ]
Age 60 years, Occ: Business ]
Add: Ramkrishna Bangar Niwas, Manjarsumba ]
Road, Post: Patoda, Beed, Maharashtra-414204. ]
Also having address:- ]
R.G.Raovilla, Ground Floor, Next to Blaiz chur, ]
Ceaser Road, Andheri (west) ]
Mumbai-400058. ]...Defendants
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3 SUM SU NO. 510/2018
Appearance:-
Ld. advocate Sanjay A Singh for the plaintiff.
Defendants absent (Exparte) .
CORAM : HHJ SHRI SANGRAM SHRIHARI SHINDE
C. R. NO. : 81
DATE : 17/01/2025.
JUDGMENT
( Dictated and pronounced in open Court)
01] This is the suit filed under Rule 2 of Order XXXVII of Code
of Civil procedure, 1908 (C.P.C.) for recovery of Rs.93,56,666/-
alongwith interest and prayed for further interest from defendants.
Brief facts of plaintiff’s case may be summarized as under :-
02] As per the plaintiff, defendant No. 1 and 2 are companies
and defendants No.3 and 4 are directors of the said company.
Defendants No. 1 to 4 approached the plaintiff for a business loan of
Rs.70,00,000/- for expansion of business activities of defendants
No. 1 and 2 in the month of February 2016. Plaintiff has borrowed loan
from Bank of Baroda, Branch Khedwadi Mumbai in the month of
February 2016. Thereafter, plaintiff and defendants entered into
Memorandum of Understanding Cum Deed of Mortgage whereby
defendants No. 1 to 4 agreed to pay annual interest @ 21% p.a. It was
also agreed defendants No. 1 to 4 will pay interest of 11.75% p.a. to the
plaintiff and interest of 9.25% to the Bank of Baroda directly.
Defendant No. 5 has stood as Guarantor to the loan of defendants
No. 1 to 4. Defendants were supposed to repay the said amount within
18 months. The amount of loan was transferred to defendant No. 2 vide
RTGS at Current Account No. 6205654048 State Bank of Hyadrabad,
Patoda Branch on 15/11/2017. The defendants paid an amount of
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Rs. 53,935/- towards interest for the February 2016 to July 2016 to the
Bank of Baroda, Khetwadi Branch. Thereafter, defendants failed to pay
balance interest to said bank. Even, defendants were liable to pay an
amount of Rs. 68,541.67/- per month to plaintiff. Thereafter, defendant
No. 1 deposited an amount of Rs. 1,61,880/- in the Bank of Baroda in
the month of May 2016. However, thereafter defendants failed to repay
the interest and loan. Defendant No. 5 mortgaged her property bearing
Gat No. 327 as a security to the said loan. Defendants failed to repay
the said loan despite of repeatedly demand. Thus, plaintiff is entitled for
an amount of Rs. 70,00,000/- towards principal and Rs. 23,56,666/-
towards interest total amounting to Rs. 93,56,666/- from defendants
jointly and severally. The defendants are also liable to pay further
interest on principal amount. Therefore, plaintiff issued demand notice
on 27/06/2017 to defendants No. 1, 3, 4 and 5 by registered post.
Defendants refused to claim the said notice. Therefore, plaintiff has
filed this suit for recovery of an outstanding amount. Hence, this suit.
03] The defendants were served with the writ of suit summons
by way of paper publication as per service affidavit at Exh. 2.
Defendants have not caused their appearance and therefore, the suit
proceeded ex-parte against them by order dated 09/12/2022.
04] In support of claim, the plaintiff filed affidavit of claim of
Jitendra Kantilal Shah as P.W.1 at Exh. 4 and reiterated his contention
for recovery of Rs. 93,56,666/- along with the further interest at the
rate of 21% p.a. The plaintiff has filed and relied upon the following
documents vide List Exh.5. Plaintiff has filed evidence closed pursis vide
Exh. 6.
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Sr.
No. Exhibit No. Particulars
1 Exh. 7 Memorandum of Understanding cum Deed of
Mortgage dated 01/02/2016.
2 Exh. 8 Confirmation from Bank of Baroda, Khetwasdi
Branch dated 15/11/2017.
3 Exh. 9 Bank Certificate dated 25/04/2023.
4 Exh. 10 Property details of defendant No. 5, as a Guarantor.
5 Exh. 11 Demand Notice dated 27/06/2017.
6 Exh. 12Colly. Returned Envelope with remark 'unclaimed'.
7 Exh. 13 Reminder/Recovery notice dated 19/07/2017 to
defendant No. 1 alongwith postal receipt.
8 Exh. 14 colly Returned envelope with remark 'address not found'.
9 Exh. 15 Demand notice dated 26/07/2017 to defendant
No. 5 alongwith postal receipt.
10 Exh. 16 colly Returned envelope with remark 'not known'.
05] To decide the present suit, following points arose for
consideration to which my findings are recorded against each of them
for the reasons given below:
Sr.
No.
Points Findings
1. Whether the plaintiff is entitled to
recover amount of Rs. 93,56,666/-
from defendants ? If yes, at what
rate interest ?
Partly yes, Rs.70,00,000/-
with simple interest thereon
at the rate of 9.25% per
annum from 01/08/2016 till
its full realization.
2. What order and decree? As per final order.
R E A S O N S
As to points No. 1 and 2 :-
06] The counsel for the plaintiff has filed written notes of
argument vide Exh. 17 and he has reiterated the contents in his plaint.
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It is further submitted that plaintiff has proved his contention by oral
and documentary evidence. The defendants failed to appear and
therefore, their evidence has remained unchallenged. Therefore,
plaintiff is entitled relief claimed by him. It is further submitted that
plaintiff had borrowed loan from Bank of Baroda, Khetwadi Branch by
mortgaging his Fixed Deposits. Hence, suit may be decreed with costs.
07] Perused plaint, oral and documentary evidence on record.
Heard learned counsel for the plaintiff. The plaintiff has filed claim
affidavit at Exh. 4 in support of his contentions and reiterated
contentions in the plaint. It has come in the evidence of plaintiff that
defendants No.1 to 4 had approached plaintiff to borrow loan of
Rs. 70,00,000/-. Therefore, plaintiff has obtained loan from Bank of
Baroda, Branch Khetwadi, Mumbai. Thereafter, plaintiff and defendants
No. 1 to 4 entered into Memorandum of Understanding cum Deed of
Mortgage on 01/02/2016 at Exh. 7 and defendants No. 1 to 4 agreed to
repay said loan with interest at the rate of 21% p.a. Thus, on perusing
said agreement, it appears that defendants No. 3 and 4 as a Directors of
defendants No. 1 and 2 have agreed to repay said loan with interest at
the rate of 21% p.a. i.e. 9.25% p.a. to Bank of Baroda and 11.75% p.a.
to plaintiff. Defendant No. 5 has stood as guarantor and also executed
mortgaged deed for property described therein as mentioned in 7/12
extract at Exh. 10. Further, plaintiff to substantiate his contention has
relied on confirmation from bank at Exh. 8 that an amount of
Rs. 70,00,000/- has been transferred to defendants. On perusing said
document, it appears that on 01/02/2016 an amount of Rs. 70,00,000/-
has been transferred to defendant No. 2 in their loan account. On
perusing certificate dated 25/04/2023 at Exh. 9, it appears that Bank of
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7 SUM SU NO. 510/2018
Baroda has issued certificate to show that an amount of Rs. 70,00,000/-
is transferred to defendants.
08] Defendants failed to repay said loan amount with interest.
Therefore, plaintiff issued demand notice dated 27/06/2017 at Exh. 11
to defendants No. 1, 3, 4 by RPAD. The said notice is returned with
remark 'unclaimed' and sealed envelope is filed on record vide Exh. 12
colly. Plaintiff had called upon defendants No.1, 3 and 4 to repay
outstanding amount with interest. As defendants failed to repay said
amount, plaintiff issued reminder dated 19/07/2017 at Exh. 13 to
defendant No. 1 however, same is returned with remark 'address not
found' at Exh. 14 colly. Even, demand notice dated 26/07/2017 at
Exh.15 is issued to defendant No.5 to invoke of guarantee under
Mortgage Deed however, it is also returned with remark 'not known' at
Exh. 16 colly.
09] Thus, from oral and documentary evidence of plaintiff, he
has proved that he had advanced loan of Rs. 70,00,000/- by obtaining
loan form Bank of Baroda to defendant No. 2. Further, it is also proved
that defendants No. 3 and 4 as a Directors have executed Memorandum
of Understanding cum Deed of Mortgage on behalf of defendants No. 1
and 2, respectively. Even, defendant No. 5 has signed said MOU as a
mortgagor and stood as Guarantor to said loan. Thus, it appears that
they have agreed to repay loan with 21% p.a. as mentioned in said
agreement. It has come in the evidence of plaintiff that defendants have
paid an amount of Rs. 53,935/- towards interest for the period February
2016 to July 2016 in Bank of Baroda. Further, defendants paid an
amount of Rs. 1,61,880/- in Bank of Baroda in the month of May 2016.
However, failed to pay interest payable to plaintiff and balance amount
of loan and interest thereon. It is the contention of the plaintiff that
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8 SUM SU NO. 510/2018
defendants are liable to pay principal amount of Rs. 70,00,000/- and
Rs. 23,56,666/- towards interest total amounting to Rs. 93,56,666/-. It
is pertinent to note that defendants have not appeared in the matter
and contested therefore, evidence of plaintiff has remained
unchallenged.
10] Thus, plaintiff has proved that defendants No. 2 to 4 have
borrowed loan of Rs. 70,00,000/- and agreed to repay said loan with
interest at the rate of 21% p.a. Further, defendants have made part
payment towards interest in Bank of Baroda. Even, it is proved that
defendant No.5 stood guarantor to said loan and executed
Memorandum of Understanding cum Mortgage Deed. Therefore, I am of
the view that plaintiff is entitled to recover principal amount of
Rs. 70,00,000/-. The plaintiff has claimed interest on principal amount
at the rate of 21% p.a. till 31/12/2017 amounting to Rs. 23,56,666/-. It
is pertinent to note that plaintiff has claimed interest on the basis of
MOU at Exh. 7. However, plaintiff has not filed any document i.e. bank
statement to show that how much amount defendants have repaid.
Even, plaintiff has claimed further interest at the rate of 21% p.a. on
principal amount from the date of filing of suit till its realization. It is
pertinent to note that rate of interest though agreed by defendants
however, it is excessive in nature in compare to the Nationalized Bank.
Therefore, considering Section 34 of Civil Procedure Code, I am of the
view that it would be proper to grant interest at the rate of 9.25% p.a.
from 01/08/2016, as defendants have made last payment in the month
of May 2016 and interest upto July 2016. Further, loan was borrowed
for defendant No.2 by defendants No.3 and 4 being Directors of
defendants No. 1 and 2 Companies. Therefore, Defendants No. 2 to 4 as
well as defendant No. 5 being Guarantor are jointly and severally liable
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to repay principal amount with interest at the rate of 9.25% p.a from
01/08/2016 till its realization. So far as defendant No. 1 company is
concerned, there is nothing on record to show that it had borrowed any
loan from plaintiff. Thus, plaintiff is entitled to recover amount as
discussed above no case made out against defendant No. 1. Hence, I
answer point No. 1 in partly affirmative and in answer to point No. 2, I
proceed to pass following order :-
O R D E R
1) Summary Suit No. 510 of 2018 is hereby partly decreed with
costs.
2) Defendants No. 2 to 5 shall jointly and severally pay an amount
of Rs. 70,00,000/- (Rupees Seventy Lahks only) to the plaintiff
with simple interest thereon at the rate of 9.25% per annum from
01/08/2016 till its full realization.
3) The plaintiff may be entitled to get refund the court fees paid, if
provided for in Rules.
4) The decree be drawn up accordingly.
(Sangram S. Shinde)
Adhoc Judge,
City Civil Court Mazgaon, Mumbai
Court Room No.81.
Date: 17/01/2025
Dictated on: 17/01/2025
Corrected & signed on: 18/01/2025
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“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER”
UPLOAD DATE NAME OF STENOGRAPHER
18/01/2025 Mrs. V. V. Malgaonkar
Name of the Judge
(with Court Room No.)
Shri S. S. Shinde
C.R. No.81
Date of Pronouncement of JUDGMENT/
ORDER 17/01/2025
JUDGMENT/ORDER signed by P. O. on 18/01/2025
JUDGMENT/ORDER uploaded on 18/01/2025
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