Final Order 1

Order Details: Ex-parte Judgement
Pdf Text: 1 Comm. Suit No.40/2021
MHCC010033972020 Presented on : 19/3/2020
Registered on : 15/02/2021
Decided on : 28/11/2022
Duration : 1Y/6M/13D
IN THE CITY CIVIL COURT AT MUMBAI.
COMMERCIAL SUIT No.40/2021
Bank of Baroda, a Body Corporate,
constituted under the Banking Companies
(Acquisition & Transfer of Undertakings)
Act 1970, having its Head Office at Mandvi,
Baroda and Corporate Office at Baroda
Corporate Centre, Bandra Kurla Complex,
Bandra (E), Mumbai400 051 and its
Mahim (west) Branch at “Solitude” Plot
No.410, Bhagoji Keer Marg, Mahim(West),
Mumbai400016. Through its Senior
Manager Ms. Neha Rajnish Fulbel, Age 35
years.
...PLAINTIFF
VERSUS
1. M/s. Shree Varad Vinayak Tours and
Travels,
A sole proprietary firm having its office
address at New Gautram Nagar, Part No.,4,
G.M. Link Road, Bhimwadi, Govandi(West),
Mumbai – 400 043.
...DEFENDANT
2. Mr. Dattu Namdeo Shelar, Age not
known, Indian Inhabitant, Adult, residing at
New Gautam Nagar, Part No.4, G.M. Link
Road, Bhimwadi, Govandi(W), Mumbai400
043.
Ms. Divya Bamne i/b. M/s. A. R. Bamne & Co., learned Advocate for plaintiff.
Defendant exparte.
CORAM : JUDGE SHRI. N.P. TRIBHUWAN (C.R.NO.32)
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2 Comm. Suit No.40/2021
E XP A R T E J U D G M E N T
(Delivered on 28/11/2022)
This is a suit for recovery of sum of Rs.6,45,633/ with
further interest of 10.1% p.a. with monthly rests plus 2% penal interest
from the date of suit till realization of the amount.
2. It is case of plaintiff that it is a body corporate under the
Banking Companies (Acquisition and Transfer of Undertakings) Act,
1970. As per the scheme of amalgamation, the Dena Bank and Vijaya
Bank merged in Bank of Baroda/plaintiff as per official Gazett
dtd.2/1/2019.
3. Defendant No.2 is sole proprietor of defendant No.1 of
proprietary firm. Pursuant to the application made by defendants, the
plaintiff vide sanction letter dtd.5/11/2016 sanctioned term loan
(under Dena vehicle Loan) of Rs.6,50,000/ for purchasing new
Hyundai car. In consideration of sanctioning the said term loan and to
secure the amount due thereunder the defendant executed security
documents in favour of plaintiffs namely (i) demand promissory note
dtd.8/11/2016 (ii) agreement of hypothecation dtd. 8/11/2016 (iii)
letter of general lien and set off. Defendants accepted the term and
condition of the sanction letter.
4. Defendant was agree pay the said loan in 60 equal
installments of Rs.10,834/ + interest each commencing from
31/12/2016. Plaintiff had paid sum of Rs.6,50,000/ towards
disbursement of payment made to the dealer by way of RTGS towards
full and final payment of price of the said car. A sum of Rs.1,80,255/
contributed by defendants towards margin money from their own
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3 Comm. Suit No.40/2021
source.
5. Defendants failed to pay monthly installments. Plaintiff by
its various letters from time to time called upon defendants to pay due
installments and interest and to regularize the loan account. However
they failed and neglected to comply the request made by the plaintiff.
On 21/5/2018 plaintiff had send demand notice under Section 13(2) of
SARFAESI Act to defendant. Defendants served with notice but they
failed to comply with said notice. As on the date of filing of the suit
defendants are in outstanding of Rs.4,92,547/ towards term loan +
Rs.13,020/ towards interest applied and reversed in the statement of
account dtd.22/2/2019 + Rs.1,16,767/ towards unapplied interest for
a period 28/2/2019 to 10/3/2019 + Rs.23,298/ towards unapplied
penal interest @ 2% from 28/2/2019 to 10/03/2020 (Total
Rs.6,45,633/).
6. Defendants are served with suit summons but they did not
appear. Hence, suit proceeded exparte against them as per order
dtd.26/7/2022 and 17/8/2022.
7. On above facts following points arise for determination and
this court and recorded findings thereon for the reasons stated as under.
POINTS FINDINGS
1. Whether the plaintiff proved that it has
advanced term loan of Rs.6,50,000/ to
plaintiff ?
…Yes
2. Whether the plaintiff proved that it is
entitled for recovery of amount of Rs.
6,45,633/ ?
…Yes, but for
Rs.3,92,547/
3. Whether the plaintiff is entitled for interest
@ 10.1% with quarterly rest + 2% penal ...Yes
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4 Comm. Suit No.40/2021
interest?
4. Whether plaintiff is entitled for the relief
claimed ?
…Yes
5. What order and decree? ...As per final
order.
REASONS
AS TO POINT Nos.1 to 4:
8. Heard learned counsel of Plaintiff. Plaintiff has examined
its Manager (PW1 Shekhar Rajput) to prove its case. He reproduced all
content of plaint in his chiefexamination. His evidence is supported by
documentary evidence (Exh.12 to 18) as under :authority letter
dtd.24/11/2022, sanction letter dtd.5/11/2016, demand promissory
note dtd.8/11/2016, agreement of hypothecation dtd.8/11/2016, letter
of general lien dt.8/11/2016, Notice dt.21/5/2018, Statement of
account alongwith Banker’s evidence certificate.
9. In view of evidence of PW1 Branch Manager of plaintiff
and documentary evidence, it becomes clear that on the request of
defendants on 8/11/2016 plaintiff has sanctioned them term loan of
Rs.6,50,000/ for purchasing vehicle for commercial purpose. On
8/11/2016 defendants have executed hypothecation agreement and
above other documents in favour of plaintiff. It seems that defendant
agreed to repay loan with interest @ 10.01 % p.a. Statement of account
supports the testimony of PW1. Statement of account shows that after
filing of the present suit the plaintiff has sold the hypothecated car for
sum of Rs.1,00,000/ and adjusted the said amount in the outstanding
dues. Thus, as on 16/2/2021 the defendants are in outstanding sum of
Rs.3,92,547/ + interest of Rs.1,16,767/ for a period from 28/2/2019
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5 Comm. Suit No.40/2021
to 10/3/2020 + Penal interest of Rs.23,298/ for the same period.
(Total Rs.5,45,633/).
10. Evidence of PW1 remained unchallenged. His evidence is
supported by documentary evidence mentioned in para supra. There is
no reason to disbelieve his testimony. Hence, plaintiff succeed to prove
that it has advanced above mentioned loan to defendant with
conditions. The amount of Rs.3,92,547/ + interest of Rs.1,16,767/ for
a period from 28/2/2019 to 10/3/2020 + Penal interest of Rs.23,298/
for the same period.(Total Rs.5,45,633/) is due and payable by
defendants to plaintiff. Therefore, plaintiff is entitled for the recovery of
the same and agreed interest 10.01% p.a. plus penal interest 2% p.a.
from the date of suit till realization of amount. Hence, I answered point
Nos.1 to 4 as above. Hence, I pass the following order.
ORDER
1. Suit is decreed with costs.
2. The defendants are jointly and severally directed to pay
to plaintiff the amount of Rs.5,45,633/
3. The defendants are jointly and severally directed to pay
to plaintiff the interest @ 10.01% p.a. + penal interest
2% p. a. om principal sum of Rs.3,92,547/ from the date
of suit till realization of the said amount.
4. Decree be drawn up accordingly.
Date : 28/11/2022
(N.P. Tribhuwan)
Judge, City Civil Court,
Mumbai. C.R.No.32
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6 Comm. Suit No.40/2021
Dictated online on : 28/11/2022.
Checked on : 28/11/2022.
Signed on : 28/11/2022.
CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER”
28/11/2022. Mrs. Rupali S. Bhor
UPLOAD DATE AND TIME NAME OF STENOGRAPHER
Name of the Judge(with CR No.) HHJ SHRI. N. P. TRIBHUVAN
(C.R.No.32)
Date of pronouncement of Order 28/11/2022
Order signed by P.O. on 28/11/2022
Order uploaded on 28/11/2022
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