Final Order 1

Order Details: Ex-parte Judgement
Pdf Text: 1 Judgment in Commercial Suit No. 172/2021
Lodged on : 16.03.2020
Admitted on : 22.03.2021
Decided on : 24.08.2022
Duration : Y M D
2 5 8
COMMERCIAL SUIT NO. 172 OF 2021
CNR NO. : MHCC010033172020
Exh.16
Canara Bank, a body corporate
Constituted and functioning under the
Banking Companies (Acquisition and
Transfer of Undertaking) Act, 1970,
having its Head Office at 112, J.C. Road,
Banglore, Karnataka State and
having one of their Branch office at 10,
Homji Street Branch Fort, Mumbai400 023. ...Plaintiff
Versus
M/s. S.M.D. Tours and Travels
A Proprietary Concern, through its
Proprietor : Mr. Anand Tukaram Survase
Age : 36 years, Indian Inhabitant
At Ramabai Ambedkar Nagar No.2,
Ekroop Mandal, Sai Vihar, T.P. Road,
Datta Krupa Chawl, Bhandup (W),
Mumbai 400 078. ...Defendant
Appearance:
Adv. Ms. Sujata Dahigaonkar for the Plaintiff.
Defendant exparte.
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2 Judgment in Commercial Suit No. 172/2021
CORAM : SHRI. A.S.SALGAR
ADHOC JUDGE,
(C.R.NO.31)
DATED : 24th AUGUST 2022
J U D G M E N T
(Delivered on : 24.08.2022)
The plaintiff has filed the suit for the recovery of the
amount of Rs.6,31,142.06ps. against the defendant along with interest
at rate of 11.50% p.a.
The brief facts of the plaintiff's case are as under:
2. The plaintiff is a Nationalized Bank, a body corporate
constituted and functioning under the Banking Companies Act, 1970
and having one of its branch at Fort, Mumbai. On the request of the
defendant, the plaintiff granted the Term Loan Facility of Rs.4,00,000/
(Rupees Four Lakh Only) on 27.01.2016 with interest at the rate of
10.95% p.a. compounded monthly for the purpose of purchase of
vehicle being a Tata Indica V2 for commercial purpose. The said loan
facility was repayable in 84 monthly installments of Rs.7020.65. The
defendant executed various documents in favour of the plaintiff for
availing the loan. The defendant executed the loan application dated
18/01/2016. Sanction letter dated 21/01/2016 and Composite
Hypothecation Agreement and receipt dated 27/01/2016 and Authority
Letter to Debit Monthly Installments dated 27/01/2016. On availing
the loan facilities, the defendant was not at all regular in repaying the
monthly installments to the plaintiff. The defendant failed to regularize
the account as a result of which the account was treated as a N.P.A. on
31/05/2017. Inspite of repeated requests and demands, the defendant
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3 Judgment in Commercial Suit No. 172/2021
failed and neglected to repay the amount due and payable by them to
the plaintiff. Therefore, plaintiff through their advocate issued notice to
the defendant on 12/12/2018 and called him to pay the outstanding
amount. As per the statement of account as on 11/03/2020, the
defendant is bound and liable to pay a sum of Rs.6,31,142.06ps. The
accounts are accurately maintained by the plaintiff bank. Hence, the
plaintiff filed this present suit against the defendant and claimed the
outstanding amount of Rs.6,31,142.06ps. from defendant alongwith
interest at the rate of 11.50% p.a. from the date of filing of the suit till
realization.
3. The suit summons was duly served to the defendant. The
defendant remained absent. Hence, as per order passed on 02.08.2022,
the suit was proceeded exparte against the defendant.
4. After considering the pleading of the plaintiff and evidence
on record, the 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.6,31,142.06ps. is outstanding
from the defendant?
In the affirmative
2) Whether plaintiff is entitled to
recover an amount of Rs.
6,31,142.06ps. from the defendant?
If yes, at what rate of interest?
In the affirmative.
Interest at the rate of Rs.12% per
annum on principal amount of
Rs. 4,00,000/
3) What order and decree? As per final order
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4 Judgment in Commercial Suit No. 172/2021
R E A S O N S
5. In support of the pleading, the plaintiff bank examined its
officer namely Vinay K. Vaidhya at Exh.4. The plaintiff also placed on
record the documentary evidence i.e. Loan Application at Exh.6,
Sanction letter at Exh.7, Composite Hypothecation Agreement at Exh.8,
Receipt at Exh.9, Particulars of Assets and Liabilities at Exh.10,
Authority Letter to debit monthly installments at Exh.11, Legal Notice at
Exh.12, Statement of Account at Exh.13. The evidence closure pursis of
the plaintiff is at Exh.15.
6. Heard Learned Advocate Ms. Sujata Dahigaonkar for the
plaintiff.
7. The Learned Advocate for the plaintiff referred the contents
in the plaint and pointed out details in the documents annexed in the
course of agreement. Accordingly to plaintiff, the defendant has
obtained the loan of Rs.4,00,000/ from the plaintiff bank for the
purchase of vehicle. The defendant has executed the various documents
i.e. Loan Application, Sanction Letter, Composite Hypothecation
Agreement, Receipts and Particulars of Assets and Liabilities and
Authority Letter in favour of the plaintiff bank. The defendant
neglected to pay the installments as undertaking by him. It is also
argued that, on the account of the failure of the defendant to repay the
loan amount the plaintiff bank was constrained to send legal notice to
the defendant. She also drew attention of the Court towards the
documents filed by the plaintiff alongwith list Exh.5. Hence, she
submitted that, the plaintiff is entitled to recover the decreetal amount.
Lastly, she prayed for decreeing the suit.
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5 Judgment in Commercial Suit No. 172/2021
As to point nos. 1 to 3
8. It is the case of the plaintiff bank that, the plaintiff bank
has advanced the loan amount of Rs.4,00,000/ to the defendant on
27/01/2016 for the purpose of purchasing of the vehicle for commercial
purpose and said loan was repayable in 84 monthly installments. The
defendant executed various documents in favour of plaintiff bank for
obtaining the loan. However, defendant did not pay the loan amount.
In this case, the defendant has not appeared before the Court and nor
filed the written statement on record. It means, the defendant has not
denied the averment made in the written statement. Therefore,
inference can be drawn that, the averment made by the plaintiff in the
plaint was deemed to be admitted by the defendant.
9. In support of the pleading, the plaintiff examined its officer
namely Vinay K. Vaidhya at Exh.4. This witness has reiterated the
contents of plaint in his affidavit of examination in chief. He also
deposed that, on the request of the defendant, the plaintiff bank
disbursed the loan of Rs.4,00,000/ for the purpose of purchase of
vehicle to the defendant. She also stated that, the defendant executed
the documents i.e. Loan Application dated 18/01/2016, Composite
Hypothecation Agreement dated 27/01/2016, Receipt and Particulars
of Assets and Liabilities and also Authority Letter to debit monthly
installments. All these documents were filed by the plaintiff at Exh.6 to
14. This witness has deposed that, the defendant failed to repay the
amount due and payable by them to the plaintiff. Therefore, the
plaintiff bank sent legal notice to the defendant. He also deposed that,
as per statement of account, the defendant is liable to pay the
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6 Judgment in Commercial Suit No. 172/2021
outstanding amount of Rs.6,31,142.06ps. Aforesaid oral and
documentary evidence tendered by the plaintiff was not challenged by
the defendant. The oral and documentary evidence filed by the plaintiff
is remained unchallenged. Therefore, I have no reason to disbelieve the
version of the plaintiff as well as documents filed on record.
10. In present case, the documentary evidence i.e. Loan
Application at Exh.6 and Composite Hypothecation Agreement at Exh.8
and Authority Letter at Exh.11 goes to show that, the defendant has
obtained the loan from the plaintiff bank and agreed to repay the loan
amount with 84 monthly installments. The statement of account filed
by the plaintiff at Exh.13 shows that, the total amount of
Rs.6,31,142.60 is outstanding from the defendant. It is material to note
that, the suit is not contested by the defendant.
11. Thus, the plaintiff by leading oral and documentary
evidence sufficiently proved that, the total amount of Rs.6,31,142.06ps.
is outstanding from the defendant. Hence, plaintiff is entitled to
recover the outstanding amount from the defendant alongwith interest
at the rate of 11.50% p.a. The Hypothecation Agreement as well as
Sanction Letter goes to show that, the defendant agreed to pay the loan
amount with interest at the rate of 11.50% p.a. with monthly
installments from the date of filing of the suit till realization.
Considering nature of transaction, I am of the view that interest at the
rate of 12% per annum will be proper one. Therefore, the plaintiff is
entitled to recover the outstanding amount from the defendant
alongwith interest at the rate of 12% p.a. Hence, I record my findings
as to points nos.1 & 2 in the affirmative and point no. 3 accordingly.
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7 Judgment in Commercial Suit No. 172/2021
12. In the light of aforesaid discussion, it is concluded that, the
plaintiff bank established the advancement of the loan to the defendant.
Hence, the plaintiff is entitled to recover the outstanding amount of
Rs.6,31,142.06ps. from the defendant. Hence, suit needs to be decreed
with costs. Hence, I proceeded to pass the following order:
ORDER
1. Commercial Suit No. 172 of 2021 is decreed with
costs.
2. The defendant do pay to the plaintiff an amount
of Rs.6,31,142.06 (Rs. Six Lakh Thirty One
Thousand One Hundred and Forty Two and Paise
Six Only) with future interest at the rate of 12
percent on the principal sum of Rs. 4,00,000/ from
the date of filing of the suit till realization within
three months from the date of this order.
3. Defendant shall bear the costs 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 : 24.08.2022 (A.S. Salgar)
Adhoc Judge,
City Civil Court
Gr. Mumbai.
Dictated on : 24.08.2022
Typed on : 24.08.2022
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8 Judgment in Commercial Suit No. 172/2021
CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER”
UPLOAD DATE TIME NAME OF STENOGRAPHER
26.08.2022 11.10 p.m. Typed by Shrawanti Karre
Stenographer Grade I
Name of the Judge HHJ Shri. A.S. Salgar
(C.R.NO. 31)
Date of Pronouncement of
Judgment/Order.
24.08.2022
Judgment/order signed by P.O on 25.08.2022
Judgment/order uploaded on 26.08.2022
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