Final Order 1

Order Details: Ex-parte Judgement
Pdf Text: 1 Comm. Suit No.28/2021
MHCC010033982020 Presented on : 19/03/2020
Registered on : 04/02/2021
Decided on : 16/03/2023
Duration : 02Y/01M/12D
Exh.22
IN THE CITY CIVIL COURT AT MUMBAI.
(COURT ROOM NO.32)
COMMERCIAL SUIT No.28/2021
Bank of Baroda, a body Corporate,
constituted under the Banking Companies
(Acquisition & Transfer of Undertakings) Act
1970, having its Head Office at Baroda,
Bhavan. R.C. Dutt Road, Alkapuri Baroda
390007 and Corporate Office at Baroda
Corporate Centre, BandraKurla Complex,
Bandra(East), Mumbai400 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 years. ...PLAINTIFF
VERSUS
1. M/s. Look Me Creation, a soleproprietary
firm having its office address at 1st floor, Plot
No.18G, Bhiva Plumber Chawl, New Post
Office, Mori Road, Mahim, Mumbai400 016.
2. Mr. Abdul Bariq Mondal,
Age Not known, Indian Inhabitant, residing
at Room No.7/20, Kamala Nagar, Jasmine
Mill Road, Dharavi, Mumbai400 017.
...DEFENDANTS
Smt. Divya Bamne i/b. A.R. Bamne & Co., learned Advocates for
plaintiff.
Defendant exparte.
CORAM : JUDGE SHRI. N.P. TRIBHUWAN
E XP A R T E J U D G M E N T
(Delivered on 16/03/2023)
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2 Comm. Suit No.28/2021
This is a suit for recovery of sum of Rs.5,74,331/ with
further interest @ 10.03% p.a. with monthly rests plus 2% penal
interest on principal sum of Rs.4,96,505/ 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. Defendant No.1 is proprietary firm of which, defendant No.2 is
proprietor. In pursuance to the application made by defendant the
plaintiff has sanctioned them PMMY Cash Credit (hypothecation of
stocks and book debts) limit of Rs.8,00,000/ on 04/12/2017 for
business requirements. Defendants accepted terms and conditions of the
said sanction letter and executed demand promissory note
dtd.14/12/2017, letter of continuing security dtd.14/12/2017 General
Letter of Will dtd.14/12/2017, agreement of hypothecation
dtd.17/12/2017, power of attorney in respect of book debts, general
undertaking; in favour of plaintiff.
3. Defendant failed to pay monthly installments. Plaintiff by
various letters as well as oral requests called upon defendants to pay the
overdue installments and interests. However, defendant failed and
neglected to pay the said dues. Therefore, account of defendant
classified as non performing assets w.e.f.31/03/2018. Lastly plaintiff
has sent demand notice dtd.30/3/2018 and called upon the defendants
to pay the outstanding dues. Inspite of the receipt of the said notice
defendants failed to clear the outstanding dues. Defendants are in
outstanding principal sum of Rs.4,96,505/ plus interest Rs.77,825/
(total Rs.5,74,331/). Hence, the suit.
4. Defendant is served with suit summons as per service
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3 Comm. Suit No.28/2021
affidavit Exh.3 on 5/10/2021 but they did not appear. Hence, suit
proceeded exparte against them as per order dtd.01/11/2022.
5. On above facts following points arise for determination and
this court and recorded findings thereon for the reasons stated as under.
POINTS FINDINGS
1. Does plaintiff prove that it has sanctioned
PMMY Cash Credit limit of Rs.8,00,000/
on 04/12/2017 for business ?
…Yes
2. Does plaintiff prove that defendant is
Rs.5,74,331/ ?
…Yes
3. Whether plaintiff is entitled for the relief
claimed ?
…Yes
4. What order and decree? ...As per final
order.
REASONS
AS TO POINT Nos.1 to 3:
6. 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.11 to 20) as under : Letter of Authority
dtd. 12/01/2023 of Mr. Shekhar Rajput, Office copy of the Sanction
Letter dtd. 4/12/2017, Demand Promissory Note dtd. 14/12/2017,
Letter of Continuity dtd. 14/12/2017, Letter of General Lien and Set off
dtd. 14/12/2017, Agreement of Hypothecation of Goods, Book Debts
dtd. 17/12/2017, Power of Attorney dtd. (Book Debts) dtd.
14/12/2017, General Undertaking dtd. 14/12/2017, Demand Notice
dtd. 30/03/2019 sent by the plaintiff to the defendants, Statement of
account along with Bankers Evidence Certificate.
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4 Comm. Suit No.28/2021
7. In view of evidence of PW1 Manager of plaintiffBank and
documentary evidence, it becomes clear that on the request of
defendant on 04/12/2017 plaintiff has sanctioned them PMMY Cash
Credit (hypothecation of stocks and book debts) limit of Rs.8,00,000/
on 04/12/2017 for business purpose. On 14/12/2017 and 17/12/2017
defendants have executed above documents in favour of plaintiff. It
seems that defendant agreed to repay loan as per the terms and
conditions mentioned in above documents.
8. 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 principal sum of Rs.4,96,505/ plus interest Rs.77,825/
(total Rs.5,74,331/) is due and payable by defendants to plaintiff.
Therefore, plaintiff is entitled for the recovery of the same and interest
10.03 % p.a. plus 2% p.a. penal interest from the date of suit till
realization of amount. Hence, I answered point Nos.1 to 3 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.5,74,331/ and interest @
10.03% p.a. plus penal interest @ 2% p.a. on principal
sum of Rs.4,96,505/ from the date of suit till realisation
of the amount.
3. Decree be drawn up accordingly.
Date : 16/03/2023
(N.P. Tribhuwan)
Judge, City Civil Court,
Mumbai. C.R.No.32
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5 Comm. Suit No.28/2021
Direct dictated on : 16/03/2023
Checked on : 16/03/2023
Signed on : 16/03/2023
CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER”
16/03/2023 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 16/03/2023
Order signed by P.O. on 16/03/2023
Order uploaded on 16/03/2023
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