Final Order 1

Order Details: Ex-parte Judgement
Pdf Text: :1: Summary Suit No.922/2018
Received on : 09.03.2018
Registered on : 04.09.2018
Decided on : 30.03.2019
Duration : Y M D
01 00 23
IN THE BOMBAY CITY CIVIL COURT AT MUMBAI
SUMMARY SUIT NO. 922 OF 2018
CNR NO.: MHCC010033682018
Union Bank of India,
a body corporate a banking
company incorporated under Banking Companies
(Acquisition & Transfer of Undertakings) Act,
1970 and having its registered office at Union
Bank Bhavan, 239, Vidhan Bhavan Marg, Nariman
Point, Mumbai – 400 021 and having one of its
branch Office at Home Street Branch, Forbes
Building, Charanjit Rai Marg, Fort, Mumbai
400001 through its Authorized representative Mr.
Ramesh Dixit. ….Plaintiff
Versus
1. M/s Sagar Mobile Stores,
Room No. 2345, Annabhau Sathe Nagar,
Village Digha, Thane Belapur Road,
Thane – 4000 078.
2. Shri Basavraj Kashinath Waghmare
Aged 32 years, Adult, Indian Inhabitant,
Room No.2345, Annabhau Sathe Nagar,
Village Digha, Thane Belapur Road,
Thane – 4000 708 ...Defendants.
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Appearances:
Advocate Ms. Nimbalkar for the Plaintiff.
Defendants Exparte.
CORAM : HER HONOUR JUDGE
S.P. AGARWAL
(C.R.NO.28)
DATED : 30th MARCH, 2019.
[ J U D G M E N T ]
Allegations of plaintiff in short is as under :
1. Plaintiff have stated that accordingly and as per the request of
the defendants, they sanctioned loan of Rs.8,47,000/ to the defendants
vide letter of sanction dated 11th August, 2016 and on the terms and
conditions contained under the same. Plaintiff has further stated that in
further consideration of they having sanctioned said Loan in favour of
the defendants, the defendant No.1 through its proprietor i.e. defendant
No.2 has executed Composite Hypothecation Deed of the said Loan
Agreement (SD20) dated 12 th August, 2016 in favour of them whereby
defendants has agreed to repay the said loan of Rs.8,47,000/ and also
agreed to pay interest on such sum from 12.08.2016 @ 2% over the
Union Bank of India's MCLR Rate or such other rates as may be
prescribed by their Bank from time to time with a minimum of 10.95%
per annum (floating) with monthly rests and falling therewith, and a
penal interest @ 2% will be levied on the overdue installments. Plaintiff
have further stated that in further consideration of them having
sanction said Loan in favour of the defendants, the defendant No.1
through its proprietor i.e. defendant No.2 has executed or submitted
following documents in favour of them;
(i) Demand Promissory Note for the sum Rs.8,47,000/
repayable on demand with interest at the agreed rate duly signed by
defendant No.2 in favour of defendant No.1 dated 12.08.2016.
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(ii) Letter of Continuity (AD 09) modified in respect of Demand
Promissory Note for the sum of Rs.8,47,000/ duly signed by defendant
No.2 in favour of defendant No.1 dated 12.08.2016.
(iii) Agreement on Rate of Interest (for MCLR Loans) executed
between plaintiff and defendants as a Borrower and Lender dated
12.08.2016.
(iv) Letter of Undertaking from Borrower in favour of the plaintiff
dated 12.08.2016.
2. Plaintiff have further stated that defendant has availed and
utilized the funds under the aforesaid Loan. However, the defendant
has failed to pay installments as agree upon. Plaintiff have further
stated that thereafter their Bank has on 18th August, 2017 bearing
reference No.UBI/HS/122/2017 sent notice to the defendants and
called upon him to repay the said loan amount together with interest
thereon, and under this notice they have also mentioned the details of
her last payment and also informed defendants that their account was
classified N.P.A. on 31st May, 2017 pursuant to default in making
payments, however, the defendants has failed to pay the same. Plaintiff
has further stated that pursuant to said statements of accounts as on
20.01.2018 is Rs.8,53,212.50 is now due and payable under the Loan
facility account by the defendant including unapplied accrued interest is
Rs.77,201.55 at the rate of 10.95% per annum plus principal amount of
Rs.7,74,884.35. Therefore, plaintiff filed the present suit.
3. Defendant Nos. 1 and 2 failed to appear in the suit, therefore,
suit has proceeded exparte against both defendants.
4. Heard the Ld. Advocate for the plaintiff.
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5. 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.8,53,212.50ps. from
defendants along with interest @
10.95% p. a. on the same amount i.e.
Rs.8,53,212.50ps. 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
6. Plaintiff has adduced evidence of Nilesh Shivgan (P.W.1),
Authorized representative of plaintiff below Exh.5 in the form of
affidavit. Plaintiff relied upon the following documents as documentary
evidence which are as under :
Sr.
No.
Exhibits Particulars
1. Exh.7 Authority Letter
2. Exh.8 Loan application dated 25th July, 2016
3. Exh.9 Sanction letter dated 11th August, 2016
4. Exh.10 Hypothecation of the said Vehicle Agreement
dated 27th May, 2016
5. Exh.11 Demand Promissory Note dated 12th August,
2016
6. Exh.12 Letter of Continuity dated 12th August, 2016
7. Exh.13 Interest Agreement (for MCLR Loans) dated 12th
August, 2016
8. Exh.14 Letter of undertaking from Borrower dated 12th
August, 2016
9. Exh.15 Copy of the Notice dated 18th October, 2017
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10. Exh.16 Copy of the account statement for the period of
11.08.2016 to 10.01.2018
11. Exh.17 Particulars of claim.
AS TO POINT NOS. 1 AND 2:
7. Plaintiff has adduced evidence of Nilesh Shivgan (P.W.1),
Authorized representative of plaintiff below Exh.5 in the form of
affidavit and stated that accordingly and as per the request of the
defendants, the plaintiff sanctioned loan of Rs.8,47,000/ to the
defendants vide letter of sanction dated 11th August, 2016 and on the
terms and conditions contained under the same. P.W.1, Nilesh Shivgan
has further stated that in further consideration of the plaintiff having
sanctioned said Loan in favour of the defendants, the defendant No.1
through its proprietor i.e. defendant No.2 has executed Composite
Hypothecation Deed of the said Loan Agreement (SD20) dated 12 th
August, 2016 in favour of the plaintiff whereby defendants has agreed
to repay the said loan of Rs.8,47,000/ and also agreed to pay interest
@ 2% from 12th day of August 2016 over the Union Bank of India's
MCLR Rate or such other rates as may be prescribed by the plaintiff's
Bank from time to time with a minimum of 10.95% per annum
(floating) with monthly rests and falling therewith, and a penal interest
@ 2% will be levied on the overdue installments. P.W.1, Nilesh Shivgan
has further stated that in further consideration of the plaintiff having
sanction said Loan in favour of the defendants, the defendant No.1
through its proprietor i.e. defendant No.2 has executed or submitted
following documents in favour of the plaintiff;
(i) Demand Promissory Note for the sum Rs.8,47,000/
repayable on demand with interest at the agreed rate duly signed by
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defendant No.2 in favour of defendant No.1 dated 12.08.2016.
(ii) Letter of Continuity (AD 09) modified in respect of Demand
Promissory Note for the sum of Rs.8,47,000/ duly signed by defendant
No.2 in favour of defendant No.1 dated 12.08.2016.
(iii) Agreement on Rate of Interest (for MCLR Loans) executed
between plaintiff and defendants as a Borrower and Lender dated
12.08.2016.
(iv) Letter of Undertaking from Borrower in favour of the plaintiff
dated 12.08.2016.
8. P.W.1, Nilesh Shivgan has further stated that defendants have
availed and utilized the funds under the aforesaid Loan. However, the
defendant has failed to pay installments as agree upon. P.W.1, Nilesh
Shivgan has further stated that thereafter the plaintiff's Bank has on 18th
August, 2017 bearing reference No.UBI/HS/122/2017 sent notice upon
the defendants and called upon him to repay the said loan amount
together with interest thereon.
9. P.W.1, Nilesh Shivgan has further stated that the plaintiffs' said and
submitted that the plaintiff has maintained the defendant's Loan
Account (A/c No: 317306140000139) in its regular course of business.
P.W.1, Nilesh Shivgan has further stated that pursuant to the said Bank
Statement as on 20.01.2018 is Rs.8,53,212.50 is now due and payable
under the Loan facility account by the defendant together with further
interest at the rate of 12% per annum with monthly rests from 1.1.2018
till degree and thereafter at the same rate till payment and realisation.
10. Plaintiff has produced all the corroborating documents which are
Authority letter, Loan application, Sanction letter, Hypothecation of the
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Vehicle Agreement, Demand Promissory Note, Letter of Continuity,
Interest Agreement, Letter of undertakings from Borrower, Copy of the
Notice and copy of account statement on record as documentary
evidence. The oral evidence of plaintiff is corroborated by documentary
evidence. Defendants have failed to challenge all the allegations in the
plaint and evidence of plaintiff. Due to all these circumstances, plaintiff
has proved that he is entitled to get sum of Rs.8,53,212.50 ps. from
both defendants jointly.
11. 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.7,74,884.35 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 and 2 are jointly directed to pay amount of
Rs.8,53,212.50 to plaintiff along with interest @ 9% p.a. on the
principal sum of Rs.7,74,884.35 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: 30.03.2019. City Civil Court,
Gr. Bombay.
Dictated on : 30.03.2019
Transcribed on : 30.03.2019
Signed on : 30.03.2019
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CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL SIGNED
JUDGMENT/ORDER.”
11.04.2019 At 3:21 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
30.03.2019
Judgment/Order signed by P.O. on 30.03.2019
Judgment/Order uploaded on 11.04.2019
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