Final Order 1

Order Details: Ex-parte Judgement
Pdf Text: Comm.Suit No. 29/21. 1 Ex-parte Judgment (Exh.19).
MHCC010033962020
Presented on : 19-03-2020
Registered on : 04-02-2021
Decided on : 06-05-2022
Duration : 2 years, 1 months, 18 days
IN THE BOMBAY CITY CIVIL COURT AT BOMBAY.
COMMERCIAL SUIT NO. 29 OF 2021
Exh.19.
Bank of Baroda, )
a Body Corporate constituted under the )
Banking Companies (Acquisition and Transfer )
of Undertakings) Act, 1970 having its Head )
Office at Baroda Bhavan, R. C. Dutt Road, )
Alkapuri Baroda 390 007 and Corporate Office )
at Baroda Corporate Centre, BandraKurla )
Complex, Bandra (East), Mumbai 400 051 and )
Its Mahim (West) Branch at “Solitude” )
Plot No. 401, Bhagoji Keer Marg, Mahim (West), )
Mumbai400 016 Through its Senior Manager )
Ms. Neha Rajnish Fulbel, age 34 )...Plaintiff
Versus
1. M/s. Evergreen Gardeners, )
Age not known )
a soleproprietary firm having its office )
address at 305, Lalchand Patil Compound, )
Near Vyayam School, )
Talavali, Navi Mumbai400 016 )
2. Mr. Muthukumar Vadivel Sollamathu, )
age not known )
of Indian Inhabitant adult residing at 305, )
Lalchand Patil Compound, )
Near Vyayam School, )
Talavali, Navi Mumbai400 016 )...Defendants
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Comm.Suit No. 29/21. 2 Ex-parte Judgment (Exh.19).
SUIT FOR RECOVERY OF MONEY
CORAM : HIS HONOUR JUDGE SHRI R.R.BHAGWAT.
(COURT ROOM NO.31).
DATE : 6th MAY, 2022.
Smt. Divya Bamne, Advocate for the plaintiff.
Defendants – (Exparte).
JUDGMENT (EXPARTE)
1. This is a suit for recovery of money.
2. Case of the plaintiff, in brief, is as under :
The plaintiff is a body corporate constituted under
the Banking Companies (Acquisition & Transfer of Undertakings) Act,
1970, having its branch office at Mahim (West) Branch. Dena Bank and
Vijaya Bank are amalgamated with Bank of Baroda as per Notification
published in Gazette dated 02/01/2019. Constituted Attorney Neha
Fulbel filed the suit for the plaintiff bank. Defendant no.2 is a sole
proprietor of defendant no.1 firm. On an application of the defendants,
the plaintiff (then Dena Bank) had sanctioned/granted cash credit limit
of Rs.10,00,000/ to the defendants for garden maintenance and
development. Accordingly, sanction letter was issued on 24/03/2014.
The defendants also executed documents including Demand Promissory
Note, Letter of Continuing Security, Deed of Hypothecation of the
goods, movable assets etc.. The defendants committed breach in
repayment of the due amount. Account of the defendants turned NPA
on 31/03/2019. Then, demand notice was issued on 24/04/2019
calling upon the defendants to pay outstanding amount within sixty
days from the date of receipt of the notice, but the defendants failed to
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Comm.Suit No. 29/21. 3 Ex-parte Judgment (Exh.19).
make payment. Hence, the plaintiff filed the suit for recovery of
outstanding amount of Rs.10,77,680.70 with further interest at the rate
of 11.65% p.a. with monthly rests plus 2% penal interest from the date
of filing of the suit till the date of realization with costs of the suit. He
also prayed for declaration that the amount is duly secured by a valid
and subsisting hypothecation of goods. Other relief relating to sell of
hypothecated goods is sought.
3. The defendant is served with writ of summons as per
affidavit of service (Exh.2), but he failed to appear and oppose the
claim of the plaintiff. Therefore, I passed the exparte order against him
on 28/09/2021.
4. PW 1 Neha Fulbel, Officer of the plaintiff bank deposed on
evidence affidavit (Exh.4) and proved documents filed with list of
documents (Exh.5). Proved documents are at Exh.6 to 17. The plaintiff
closed evidence vide pursis (Exh.18). Heard learned counsel Mrs. Divya
Bamne for the plaintiff.
5. After considering pleadings of the plaintiff and evidence on
record, following points arose for my determination with my findings
against them with reasons to follow :
SR.NO. POINTS FINDINGS
1. Does the plaintiff prove that he is
entitled to recover amount of
Rs.10,77,680.70 from the defendants ?
If yes, at what rate of interest ? In the Affirmative.
@ 11.65% p.a. with
monthly rest.
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Comm.Suit No. 29/21. 4 Ex-parte Judgment (Exh.19).
2. Does the plaintiff prove that he is
entitled to declaration that the amount
mentioned in prayer clause (a) of the
plaint is duly secured by the valid and
subsisting hypothecation of goods /
books etc. ? In the Affirmative.
3. Does the plaintiff prove that he is
entitled to sell of the hypothecated
security and to get sale proceeded
towards his claim ? In the Negative.
4. What order as to costs ? As per final order.
5. What order and decree ? Suit is partly
decreed.
REASONS
AS TO POINTS NO.1 TO 4 :
6. PW 1 Neha Fulbel has specifically stated that the cash
credit limit of Rs.10,00,000/ was sanctioned to the defendants for
garden maintenance and development as per their loan application
dated 13/02/2014 (Exh.7) by sanction letter dated 24/03/2014
(Exh.8). She also proved demand Promissory Note, Letter of
Continuity, Hypothecation of Goods and Power of Attorney (Exh.9, 10,
11 and 12 respectively). The defendant failed to make payment. The
defendant neglected to make payment of outstanding amount as stated
in statement of account (Exh.17). PW 1 Neha Fulbel also proved
demand notice dated 24/04/2019 (Exh.15) and acknowledgement
(Exh.16). In short, claim of the plaintiff is proved from oral as well as
documentary evidence on record.
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Comm.Suit No. 29/21. 5 Ex-parte Judgment (Exh.19).
7. So far as interest rate is concerned, the plaintiff has claimed
interest at the rate of 11.65% p.a. and it is within the range laid down
in sanction letter (Exh.8) and Demand Promissory Note (Exh.9).
Therefore, it can be granted. It does not appear appropriate to grant
penal interest considering the purpose of availing credit facility is to
flourish business and earn livelihood. The plaintiff is also entitled to the
relief of validity of Deed of Hypothecation. The third relief is pertaining
to execution of the decree and it is not required to be granted. The
plaintiff is having liberty to approach the executing court for sale of the
hypothecated goods and adjusting sale proceeds towards its claim.
Costs of the suit is liable to be imposed on the defendants. In the light
of above discussion, I record my finding as to points no.1 and 2 in the
affirmative and as to point no.3 in the negative. Hence, I pass the
following order :
ORDER
1. Commercial Suit No. 29/2021 is partly decreed.
2. Defendants no.1 and 2 are directed to pay amount of
Rs.10,77,680.70 (Rupees Ten Lakhs Seventyseven
Thousand Six Hundred Eighty and Paise Seventy Only) to
the plaintiff with further interest @ 11.65% p.a. with
monthly rest from the date of the suit till the date of
realization within three months from the date of decree.
3. It is hereby declared that the amount mentioned in prayer
clause (a) of the plaint is duly secured by the valid and
subsisting hypothecation of goods / books etc..
4. Defendants no.1 and 2 shall be jointly and severally liable
to pay decretal amount to the plaintiff.
5. Defendants shall bear the costs of the suit.
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Comm.Suit No. 29/21. 6 Ex-parte Judgment (Exh.19).
6. Decree be drawn up accordingly.
(R.R.BHAGWAT)
Judge,
City Civil Court,
(Court Room No.31)
Date : 06/05/2022. Mumbai.
1. Dictated online on : 06/05/2022.
2. Signed on : 06/05/2022.
3. Delivered to Certified :
Copy Section on
“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER”
UPLOAD DATE AND TIME NAME OF STENOGRAPHER
06/05/2022. 4.12 p.m. Miss M.A.Kulkarni.
Name of the Judge (with Court Room no.) HHJ Shri R.R.Bhagwat.
(Court Room No.31).
Date of Pronouncement of Judgment/Order 06/05/2022.
Judgment/Order signed by P.O. on 06/05/2022.
Judgment/Order uploaded on 06/05/2022.
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