Final Order 1

Order Details: Ex-parte Judgement
Pdf Text: Judgment in Suit No.
1059 of 2018. 1
MHCC010033402018
Presented on : 08-03-2018
Registered on : 10-04-2018
Decided on : 07-07-2023
Duration : 5 Yr, 3 M, 30 D
IN THE CITY CIVIL COURT FOR GR. BOMBAY AT MUMBAI
SHORT CAUSE SUIT NO.1059 OF 2018.
Exh. 07.
TAMILNAD MERCANTILE BANK LTD. ]
A Banking Company incorporated under ]
the Companies Act 1956 having its Registered ]
Office at 57, V.E. Road, Thoothukudi 628 002 ]
and a branch amongst other places at ]
Ground Floor, Plot No.53. C.S.T.Road, ]
Sindhi Society, Opp. Bhakthi Bhavan, ]
Chembur, Mumbai – 400 071. ]
through authroized officer, ]
Mr. D. Saravanan Age. 49 Years. ]....Plaintiff.
Vs.
1.Mr. Aneel Bandopanth Kalbhor. ]
S/o. Mr. Bandopanth Kalbhor, ]
Age not known, Adult, Indian Inhabitant, ]
residing at Flat No.401, Plot No. 503, ]
Manarch Galaxy, Seawood, Sector 36, Nerul, ]
Navi Mumbai – 400 706. ]
2. Nr, Antony Swamy. ]
S/o. Irudaya Swamy, Adult, age not known, ]
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Judgment in Suit No.
1059 of 2018. 2
having address at Room No.2, Patil Chawl, ]
Agarwadi, Mankhurd, Mumbai 400 088. ]….Defendants.
Appearance:
Adv. Sameer Shaikh i/b M/s. Consulta Juris for the plaintiff
Defendant – Exparte.
SUIT FOR RECOVERY OF MONEY
Coram : Shri. U.C.Deshmukh.
Judge.
CR No. : 59.
Date :07th July, 2023.
ORAL JUDGMENT
This is suit for recovery of an amount of Rs.2,77,436/- at the
rate of interest 11.25% p.a.
Brief facts of the plaintiff’s case are as under :
2. The plaintiff contends that it is a banking companies
registered under Companies Act 1956. Defendant No.1 requested it to
sanction the term loan to purchase vehicle. Accordingly, on 14.02.2011,
the plaintiff -sanctioned loan of Rs.4,50,000/- Defendant No. 1 executed
agreement for loan. Defendant No. 2 is the guarantor.
3. The plaintiff specifically contends that the loan was sanction
to purchase Maruti Swift (VDI) Model car. Accordingly, vide Hypothecation
Deed dated 14.02.2011, the Maruti Swift (VDI) Model Car is hypothecated
with the plaintiff. Defendant No.1 failed to repay loan since December,
2014. Hence, the account of defendant No.1 had categorized as ‘Non
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Judgment in Suit No.
1059 of 2018. 3
performing Assets’ ( in short ‘NPA’ ) on 31st December 2014. Thereafter the
plaintiff made various requests and demanded the loan amount. However,
defendant No.1 is failed to repay the same.
4. The plaintiff specifically contends that on 26.08.2014 and
15.09.2014 he issued letters to defendant No.1 to informed that necessary
charges for renewal of insurance will be debited from defendant No.1’s
account. The defendant have executed revival letter dated 10.02.2014 and
31.01.2017. The documents show that he admits the disbursal of the loan
amount. Defendant No.1 & 2 are liable to repay the due amount of Rs.
2,77,436/- with interest on 12.02.2018. Hence, this suit.
5. Defendant Nos. 1 & 2 are duly served with writ of summons
but they failed to appear. Therefore, the suit proceeded exparte against
them.
6. After suit proceeded ex-parte, the plaintiff filed affidavit of
evidence at Exh.3 along with List of Documents at Exh. 4. Plaintiff filed
following documents along with Exh. 04 which he has proved the same in
evidence as follows..
Sr. No. Documents.
1. Power of Attorney dated 27.12.2012, that PW-1
K.Kalish Kumar, son of Late K.Kumarsesan, Senior
Manager of Tamilnad Mercantile Bank Ltd., deposed
on behalf of the plaintiff,
2 Original Sanction Letter
3 Original Letter dated 14.02.2011 addressed by
defendant No.1 to plaintiff.
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Judgment in Suit No.
1059 of 2018. 4
4. Original Demand Promissory Note dated 14.02.2011 of
Rs. 4,50,000/-
5 Original DPN delivery letter dt. 14.02.2011.
6 Original Letter of waiver dated 14.02.2011.
7 Original Hire Purchase Agreement
8 Original Loan Agreement
9 Original Undertaking to produce the vehicle for
inspection within 7 days of receipt of letter from the
bank dtd. 15.02.2011
10 Copy undertaking to repay the loan in installments
dated. 14.02.2011
11 Original undertaking in bring in margin money
requirement dated 14.02.2011.
12 Original Form No. 221 Consent Letter dated
14.02.2011 by defendant No.1 to create security by
hypothecation of car
13 Original Letter dated 14.02.2011 from plaintiff’s to the
dealer.
14 Copy of proforma invoice dated 11.01.2011
15 Copy of receipt of payment issued by Om Sai Motor dt.
17.01.2011
16 Original receipt for payment issued by Om Sai Motors
dated 25.02.2011.
17 Original Deed of Hypothetication dated 14.02.2011
executed by Defendant No.1 in favour of the plaintiff
along with certificate of Registration of the vehicle.
18 Original letter dated 14.02.2011 addressed by the
plaintiff to Regional Transport office.
19 Original Guarantee Agreement dated 14.02.2011 along
with consent letter dated 14.02.2011 executed by
defendant No.2 in favour of the plaintiff.
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1059 of 2018. 5
20 Original letter dated 26.08.2014 addressed by the
plaintiff to the defendant No. 1.
21 Original Letter dated 15.09.2014 addressed by the
plaintiff to the defendant No.1.
22 Original Revival Letter dated 10.02.2014.
23 Original Revival Letter dated 30.01.2017
24 Statement of Account
.
7. It is submission made by Ld.advocate for the plaintiff that the
suit is proceeded exparte. The pleading and evidence of the plaintiff
remained unchallenged. Hence, there is no reason to discard the suit.
Consequently, prayed to decree the suit.
8. Considering the facts, evidence and law applicable to the case,
following points arise for determination.:
Sr. No. POINTS FINDINGS
1. Does the plaintiff prove that he
is entitled to recover an amount
of Rs. 2,77,436/- with interest
at the rate of 11.25% p.a. from
the date of the suit?
..Yes..
2. Whether the suit is within the
limitation?
..Yes..
3. What order and decree? Suit is decreed.
:REASON:
As to point No. 1 & 2:
9. It is needless to say that as suit proceeded exparte, hence, the
pleading and evidence of the plaintiff has remained unchallenged.
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Judgment in Suit No.
1059 of 2018. 6
Therefore, there is no reason as to discard the case. The affidavit of
evidence at Exh. 3 and documents filed on record show that the term loan
was disbursed by the plaintiff to defendant No.1 but he has failed to pay.
The plaintiff has succeeded to show that the amount of Rs.2,77,436/- was
due from defendants on account of loan advanced by him to defendant
No.1. Now peculiar question arise, whether the suit of the plaintiff is
within the limitation.
10. It is specific contention of the plaintiff that as per agreement
between itself and defendant No.1, defendant No. 2 has agreed to act as
guarantor to defendant No.1. The plaintiff has filed on record sanction
letter, Hire purchase agreement and other original documents which show
that there is agreement between the plaintiff and defendants and the
plaintiff had advanced loan to defendant No.1 to purchase the car. All
these documents supports the case of the plaintiff. He further pleaded that
defendant No.2 being a guarantor, is also failed to repay the outstanding
amount of defendant no. 1.
11. Defendant Nos.1 is failed to repay the installment from
31.12.2014. The plaintiff has issued notice dtd. 26.08.2014 and
15.09.2014 for renewal of insurance and payment of his outstanding. The
suit is instituted on 08th March 2018. Above documents along with
statement of account establish that plaintiff Bank sanctioned and disbursed
an amount of Rs.4,50,000/- to the defendants as vehicle loan. The
statement of account further indicates that an amount of Rs.2,77,436/- as
per Particulars of Claim given in Exh.H with the plaint is outstanding as on
29.01.2018 in the loan account of the defendant No.1. The Demand Notice
is duly served upon defendant. The writ of summons is also served but
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Judgment in Suit No.
1059 of 2018. 7
defendants have failed to defend the claim. The revival letter dated
10.02.2014 and 30.01.2017 bring the suit within the limitation.
Therefore, the plaintiff is entitled to recover the outstanding amount along
with interest as per documents on record. As per the agreement for loan,
defendant No.1 and 2 were bound to pay an amount at the rate of interest
11.25% p.a. Resultantly, point Nos. 1 & 2 are answered in the affirmative.
12. The suit is proceeded ex-parte. The suit is going to decree. In
such circumstances, it would be just and proper to direct the plaintiff to
bear the costs of the proceedings. Accordingly, in answer to point No. 3,
following order is passed :
ORDER
1. Suit No. 1059 of 2018 is decreed with costs.
2. Defendant Nos. 1 & 2, jointly and severally to pay an amount of
Rs.2,77,436/- to the plaintiff with interest at the rate of 11.25% p.a.
from the date of the suit till entire amount is realized.
3. Defendants to pay aforesaid decreetal amount within 2 months of
the order.
4. Decree be drawn up accordingly.
5. Suit No. 1059 of 2018 is disposed off accordingly.
(U.C.Deshmukh)
Judge,
City Civil and Sessions Court
Date.:07.07.2023 Greater Bombay (CR 59)
Declared on : 07.07.2023
Dictated on : 07.07.2023
Transcribed on : 13.07.2023
Checked on : 13.07.2023
Signed on :
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Judgment in Suit No.
1059 of 2018. 8
CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER”
25.07.2023 at 11.30 -a.m. Mrs. P.R.Wagh
UPLOAD DATE AND TIME NAME OF STENOGRAPHER
Name of the Judge (with Court
Room No.)
HHJ SHRI.U.C.Deshmukh,(C.R.No.59)
Judge.,City Civil & Sessions Court,
Date of pronouncement of /Order 07.06.2023
Order signed by P.O. on 19.07.2023
order uploaded on 25.07.2023
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