Final Order 1

Order Details: Ex-parte Judgement
Pdf Text: 1 Judgment in Com. Suit No. 42/2021
Lodged on : 22.07.2020
Admitted on : 15.02.2021
Decided on : 14.12.2022
Duration : Y M D
2 4 22
COMMERCIAL SUIT NO. 42 of 2021
CNR NO. : MHCC010035952020
Exh.18
Canara Bank, a body corporate
constituted and functioning under the
Banking Companies (Acquisition and
Transfer of Undertakings) Act, 1970,
having its Head Office at 112, J.C. Road,
Bangalore, Karnataka State and having
one of their branch offices at 1st floor,
10 Homji Street, Fort, Mumbai – 400 023. ...Plaintiff
Versus
1. M/s. A.K. Fashion Store
A Proprietary Concern, Through its
Proprietor Mr. Aslam Nabi Hussain
Khan Aged 32 years, Indian Inhabitant,
At Room No. 69, 2/2, Ground Floor,
Din Bandhu Nagar, Salt Pan Road,
Wadala (E), Mumbai – 400 037.
2. Ms. Khushbu Dinesh Singh
44, Lal Bahadur Shastri Nagar,
Salt Pan Road, Wadala (East),
Mumbai – 400 037. ...Defendants
Appearance:
Adv. Ms. Sujata Dahigaonkar for Plaintiff.
Defendants exparte.
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2 Judgment in Com. Suit No. 42/2021
CORAM : SHRI. A.S.SALGAR
ADHOC JUDGE,
(C.R.NO.31)
DATED : 14th DECEMBER 2022
J U D G M E N T
(Delivered on : 14.12.2022)
This is a suit filed by the plaintiff bank for the recovery of
the amount of Rs.9,51,913.11ps. from the defendants along with
interest at the rate of 9.50% per annum compounded monthly from the
date of filing of the suit till its realization.
2. Brief facts of the plaintiff's case is as under:
The plaintiff is a Nationalized Bank, a body corporate
constituted and functioning under the Banking Companies Act, 1970,
having its branch office at Homji Street, Fort, Mumbai. On 04.03.2020,
the plaintiff, formerly known Syndicate Bank got amalgamated to
Canara Bank. The defendant no. 1 is the borrower and the defendant
no. 2 stood as a Guarantor to the said facility availed by the defendant
no. 1. At the request of the defendant no. 1, the plaintiff on 16.01.2017
sanctioned loan facility of Rs.7,00,000/ and the said loan was
repayable in 36 equal monthly installments. The defendants have
executed the documents in favour of the plaintiff bank namely Loan
Application dated 05.01.2017, Letter of Sanction dated 16.01.2017,
Particulars of Assets and Liabilities of defendant no. 1, Particulars of
Assets and Liabilities of defendant no. 2, Composite Hypothecation
Agreement dated 07.02.2017, Receipt dated 07.02.2017 and Guarantee
Agreement dated 07.02.2017.
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3 Judgment in Com. Suit No. 42/2021
3. The plaintiff further submitted that on availing the said
facility, the defendants were not at all regular in repaying the loan
amount to the plaintiff and neglected to pay the monthly installment.
The plaintiff bank on several occasions called upon the defendants to
repay the loan amount, but the defendants avoided to repay the loan
amount. As a result of which the account of the defendants was treated
as Non Performing Asset on 31.07.2017. Thereafter, the plaintiff's
Advocate issued a legal notice on 24.07.2018 and called upon the
defendants to pay to the plaintiff the entire outstanding amount. The
plaintiff further submitted that inspite of issuance of the legal notice,
the defendants failed and neglected to repay the loan amount. As per
the Statement of Account, the defendants are jointly and severally liable
to pay the outstanding amount of Rs.9,51,913.11ps. along with interest
at the rate of 9.50% per annum. The plaintiff bank has maintained
account in the usual course of banking transaction. Hence, the plaintiff
has filed the present suit against the defendants praying that the
defendants be directed to pay to plaintiff bank a sum of
Rs.9,51,913.11ps. together with interest at the rate of 9.50% per annum
compounded monthly from the date of filing of the suit till realization.
4. The suit summons was issued to the defendants by
substituted service by publishing in two newspapers. The plaintiff
placed on record the Affidavit of Service of Writ of Summons along with
copies of two newspapers. The Writ of Summons was duly served to the
defendants. The defendants were absent when called out. Hence, as per
order passed on 20.10.2022, the suit was proceeded exparte against
both the defendants.
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4 Judgment in Com. Suit No. 42/2021
5. In support of the pleading, the plaintiff examined its
Manager namely Mr. Vinay Vaidhya at Exh.4. The plaintiff also placed
on record the documentary evidence along with list Exh.5. Exh,6 is the
application for credit facilities, Exh.7 is the Sanction letter, Exh.8 is the
Particulars of Assets and Liabilities of Defendant No. 1, Exh.9 is the
particulars of Assets and Liabilities of Defendant No. 2, Exh.10 is the
Composite Hypothecation Agreement, Exh.11 is the Receipt, Exh.12 is
the Guarantee Agreement, Exh. 13 is the legal notice and Exh.14 is the
Statement of Account. The evidence closure pursis of the plaintiff is at
Exh.17.
6. After considering the pleadings of the plaintiff and evidence
on record, following points arise for my determination and I have
recorded my finding against each of them with the reasons to follows:
POINTS FINDING
1) Whether plaintiff bank proves
that an amount of
Rs.9,51,913.11ps. is outstanding
from the defendants?
In the affirmative
2) Whether plaintiff bank is entitled
to recover an amount of
Rs.9,51,913.11ps. from the
defendants? If yes, at what rate of
interest ?
In the affirmative.
At the rate of 10% per annum on
the principal amount.
3) What order and decree? As per final order.
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5 Judgment in Com. Suit No. 42/2021
R E A S O N S
7. Heard Learned Advocate Ms. Sujata Dahigaonkar for the
plaintiff at length.
As to Point Nos.1 & 2
8. It is the case of the plaintiff that as per request made by the
defendant no. 1, the plaintiff had sanctioned the loan of Rs. 7,00,000/
to the defendants. The defendant no. 2 stood as a guarantor for the said
loan. The said loan was repayable in 36 equal installments. The
defendants failed and neglected to repay the amount due. Therefore,
the plaintiff through his Advocate called upon the defendants to repay
the loan amount, but the defendants failed to repay the loan amount.
According to the plaintiff, an amount of Rs.9,51,913.11ps. is
outstanding from the defendants. At the outset, it is to be noted that the
defendants have not filed any Written Statement on record. The
defendants have not denied or disputed the averments made by the
plaintiff in the plaint. Therefore, the averments made in the plaint were
deemed to have admitted by the defendants.
9. In support of the pleading, the plaintiff bank examined its
Branch Manager namely Mr. Vinay Vaidhya at Exh.4, who deposed that
the plaintiff bank has sanctioned the loan of Rs.7,00,000/ to the
defendants on 16.01.2017. The defendants have executed the
documents in favour of the plaintiff bank. The defendants were not at
all regular in repaying the amount to the plaintiff. As a result, the
account of the defendants has become NPA. According to the plaintiff,
an amount of Rs.9,51,913.11ps. is outstanding from the defendants.
This witness has proved the documents filed on record by the plaintiff
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bank vide Exh.6 to 14. The oral evidence of the plaintiff's witness is not
subjected to crossexamination. Therefore, it can be said that the oral
evidence of the plaintiff remained unchallenged. Hence, I have no
reason to disbelieve the version of the plaintiff.
10. The oral evidence of the plaintiff is supported by
documentary evidence at Exh.6 to 15. The application for credit
facilities at Exh.6 shows that the defendants have applied to the plaintiff
bank for the loan. The sanction letter at Exh.7 shows that the plaintiff
bank sanctioned the loan of Rs.7,00,000/ to the defendants and the
defendants agreed to repay the loan amount with 36 monthly
installments. The said sanction letter also bears the signature of both
the defendants. The Composite Hypothecation Agreement at Exh.10
shows that the defendants have executed the said Composite Agreement
in favour of the plaintiff bank. Exh.11 also shows that the defendants
have issued a receipt in favour of the plaintiff bank towards receiving
the loan amount of Rs.7,00,000/ from the plaintiff bank. The
Guarantee Agreement at Exh.12 shows that the defendant no. 2 stood
as a guarantor for the said loan and he also agreed to repay the loan
amount along with defendant no. 1. The defendants have failed to
repay the loan amount to the plaintiff. Therefore, the plaintiff's
Advocate was constrained to issue a legal notice to the defendants as
per Exh.13. The defendants have not replied to the said notice. The
Statement of Account at Exh.14 shows that the amount of
Rs.9,51,913.11ps. is outstanding from the defendants. The plaintiff
bank has maintained the Statement of Account in the usual course of
banking transactions and in accordance with the provisions of the
Banker's Books Evidence Act, 1891. The defendants have not challenged
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7 Judgment in Com. Suit No. 42/2021
the aforesaid documentary evidence tendered by the plaintiff.
Therefore, the said documentary evidence cannot be disbelieved.
11. In the present case, the oral as well as documentary
evidence tendered by the plaintiff goes to show that the total amount of
Rs.9,51,913.11ps. is outstanding from the defendants. Therefore, the
plaintiff bank is entitled to recover the said amount from the
defendants. The documents show that the defendant no. 2 stood as a
guarantor for the said loan. Therefore, the defendant no. 2 is also
jointly and severally liable to pay the outstanding amount to the
plaintiff. In short, the defendant nos. 1 and 2 are jointly and severally
liable to pay the amount of Rs.9,51,913.11ps. to the plaintiff bank.
12. So far as the rate of interest is concerned, the plaintiff bank
has claimed interest at the rate of 9.50% per annum compounded
monthly. The sanction letter shows that the agreed rate of interest
between the parties is 10% per annum. In my view, as the defendants
have agreed to repay the loan amount with interest, therefore the
plaintiff is entitled to recover the amount from the defendants along
with interest at the rate of 10% per annum. In short, the plaintiff is
entitled to recover an amount of Rs.9,51,913.11ps. from the defendants
along with interest at the rate of 10% per annum on the principal
amount from the date of filing of the suit till its realization. Hence, I
answer point no. 1 in the affirmative and point no. 2 accordingly.
13. In the light of above discussion, it is concluded that the
plaintiff has sufficiently established that an amount of
Rs.9,51,913.11ps. is outstanding from the defendants. Therefore, the
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8 Judgment in Com. Suit No. 42/2021
plaintiff bank is entitled to recover the said amount together with
interest from the defendants. Hence, the suit needs to be decreed with
costs. In the result, I pass the following order:
ORDER
1) Commercial Suit No. 42 of 2021 is decreed with costs.
2) The defendant nos. 1 and 2 are jointly and severally
liable to pay an amount of Rs.9,51,913.11ps. (Rs. Nine
Lakhs Fifty One Thousand Nine Hundred Thirteen and
Eleven Paise Only) to the plaintiff along with interest at
the rate of 10% per annum on the principal amount
from the date of filing of the suit till realization within
three months from the date of this order.
3) Defendants to bear the cost of the suit.
4) Court fee, if any, be refunded to the plaintiff as per rule.
5) Decree be drawn up accordingly.
(Judgment pronounced in the open Court)
Dated : 14.12.2022 (A.S. Salgar)
Adhoc Judge,
City Civil Court
Gr. Mumbai.
Dictated on : 14.12.2022
Typed on : 19.12.2022
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9 Judgment in Com. Suit No. 42/2021
CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER”
UPLOAD DATE TIME NAME OF STENOGRAPHER
19.12.2022 5.30 p.m. Prachi Y. Potdar
Stenographer Grade I
Name of the Judge HHJ Shri. A.S. Salgar
(C.R.NO. 31)
Date of Pronouncement of
Judgment/Order.
14.12.2022
Judgment/order signed by P.O on 19.12.2022
Judgment/order uploaded on 19.12.2022
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