Final Order 1

Order Details: Ex-parte Judgement
Pdf Text: ..1.. S. C Suit No.1377/2019
MHCC010036242019 Presented on : 29/03/2019
Registered on : 10/06/2019
Decided on : 20/09/2024
Duration : 05Y 05M 23D
IN THE BOMBAY CITY CIVIL COURT, GREATER MUMBAI AT
MAZGAON
EXHIBIT-16
S. C. SUIT NO.1377 OF 2019
(CNR NO.MHCC01-003624-2019)
Dena Bank, a body corporate constituted
Under the Banking Companies (Acquisition &
Transfer of Undertakings) Act, 1970, having its
Corporate Office at Dena Corporate Center, C-10,
G-Block, Bandra (E), Mumbai-400 051 and its
Branch Office amongst at Tardeo Branch, Everest -
11A, 2nd Floor, Tardeo Road Mumbai – 400 034,
Rahul Prakash Modak through its Branch Manager.
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 (Gujarat) and Corporate
Office at Baroda Corporate Center, G-Block,
Bandra-Kurla Complex, Bandra (E), Mumbai – 400
051 and its Branch Office amongst at Tardeo
Branch, Everest 8-11A, 2nd Floor, Tardeo Road,
Mumbai – 400 034.
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(Deleted and
substituted as per
order dated
07/01/2020 in
chamber summons
No.28 of 2020.)
..Plaintiff
VERSUS
1. M/s. B. S. Tours and Travels, carrying on
business at near L & T Gate 2, Milind Nagar,
J. V. Link Road, Powai, Mumbai – 400 072.
2. Shri Babu Sonkamble, India Inhabitant at
Mumbai Prop. M/s. B. S. Tours and Travels
carrying on business at near L & T Gate 2,
Milind Nagar, J. V. Link Road, Powai,
Mumbai-400 072.
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..2.. S. C Suit No.1377/2019
3. Mr. Rupesh Shankar More,
Shingre Wadi, 198, Gajanan Krupa Society,
Shivneri Nagar, Kurla, Mumbai – 400 070.
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Appearance :-
Learned Advocate Karuna Adangale for plaintiff.
None for defendants.
(Ex-parte)
CORAM : HIS HONOUR JUDGE
SHAIKH AKBAR SHAIKH JAFAR
COURT ROOM NO.84.
DATE : 20/09/2024.
J U D G M E N T
1 Instant suit is filed for recovery of amount. The plaintiff
bank has come with the case that plaintiff bank is a corporate body
constituted and established under the Banking Companies (Acquisition
and Transfer of Undertaking) Act, 1970, having its head office and its
Branch Office as mentioned in cause title. Plaintiff is carrying on
business of bankers. Defendant No.1 is a proprietorship firm of which
defendant No.2 is a sole proprietor and defendant No.3 is a guarantor.
2 It is the case of plaintiff bank that the defendant Nos.1 and
2 approached the plaintiff bank for vehicle loan. The plaintiff bank
sanctioned the loan on 25/01/2018 of Rs.3,60,000/- vide sanction
letter, thereby agreeing to the terms and conditions of the bank by
defendant Nos.1 and 2. Defendant No.3 stood as guarantor. The
plaintiff bank has sanctioned loan at the interest rate of 9.80% per
annum. In consequence to the sanction of loan, the defendant Nos.1
and 2 have executed documents mentioned in paragraph No.4 of the
plaint. It is further contended by the plaintiff that the said loan was
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..3.. S. C Suit No.1377/2019
disbursed to defendant Nos.1 and 2, but they failed and neglected to
repay the monthly installments regularly. It is the contention of plaintiff
that defendants are jointly and severally liable to repay a sum of
Rs.2,91,957.15/-. Further, plaintiff has issued notice on 19/03/2019
calling upon defendants to pay the balance amount, but in vain. Hence,
plaintiff filed this suit for recovery of balance amount of
Rs.2,91,957.15/-.
3 The summons were served upon the defendants, but they
failed to appear before the Court, therefore, as per order in
roznama
dated 05/01/2024, suit proceeded ex-parte against the defendants.
4 Having regard to the contentions of plaintiff, following
points arise for my determination and I have recorded my findings
thereon for the reasons thereunder :-
POINTS FINDINGS
1 Does the plaintiff prove that it advanced
loan to defendant Nos.1 and 2 of
Rs.3,60,000/- and defendant No.3 stood
as guarantor?
Affirmative
2 Does the plaintiff prove that defendant
Nos.1 and 2 failed to repay the loan as
agreed ?
Affirmative
3 Does the plaintiff prove that it is entitled
to charge interest as prayed for ?
Partly Affirmative
4 Is the plaintiff entitled for the reliefs
sought ?
Partly Affirmative
5 What order ? As per final order.
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..4.. S. C Suit No.1377/2019
R E A S O N S
5 In order to substantiate the contentions, the authorised
person of plaintiff entered the witness box and relied upon various
documents (Exhibit-07 colly to 13 colly) under list (Exhibit-06). Heard
learned advocate for plaintiff.
As to point Nos.1 to 3 :-
6 The evidence of authorized person of plaintiff remain
unchallenged. The record discloses that defendant Nos.1 and 2 have
executed the loan document in favour of the bank, availed the loan
facility, but failed to repay the loan installment amount as agreed.
Plaintiff bank has filed Original sanction letter (Exhibit-07 colly),
Demand Promissory note of Rs.3,60,000/- (Exhibit-08), Agreement of
hypothecation (Exhibit-09 colly), General letter of lien and set off
(Exhibit-10 colly) alongwith letter of general lien and set-off from
guarantor (Exhibit-11 colly) and letter of guarantee (Exhibit-12 colly).
Plaintiff has also filed copy of advocate notice dated 19/03/2019
alongwith Statement of Accounts (Exhibit-13 colly). As per the
particulars of claim, an amount of Rs.2,78,304.59/- is outstanding as on
08/03/2019 against the defendant. The default of defendant Nos.1 and
2 shows that they have deliberately avoided to pay the loan amount,
thus, the plaintiff bank is entitled for recovery of the same. Hence, I am
of the view that plaintiff bank is entitled for interest from the date of
default i.e. 08/03/2019, till realisation of entire due amount i.e.
Rs.2,78,304.59/-.
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..5.. S. C Suit No.1377/2019
7 The defendants remained absent though served, matter
proceeded ex-parte which is sufficient to draw an inference that
defendants have not repaid the due amount and committed default.
Therefore, defendant Nos.1 and 2 being borrowers and defendant No.3
as guarantor are jointly and severally liable to pay the balance due
amount of Rs.2,78,304.59/-. The plaintiff bank having business of
banking is based on public fund, therefore, the plaintiff bank is entitled
to recover the due amount from the defendants as prayed for. In view of
above discussions, I answer point Nos.1 and 2 in affirmative.
8 So far as interest is concerned, plaintiff is claiming interest
at the rate of 10.35% per annum from defendants. No doubt plaintiff
has suffered loss in business and profit, due to failure to repay the
amount by the defendants. Had it been paid to the plaintiff as per
demand, it would have invested and would have earned profit
therefrom. Therefore, I am of the view that plaintiff is entitled for
interest at the rate of 9% per annum from 08/03/2019, till its full
realisation. In view of above discussions, I answer point No.3 in partly
affirmative.
9 As the plaintiff bank is made constrained to file the suit for
recovery of loan amount, therefore, defendants are liable to pay the
costs of suit. In the result, I answer point No.4 accordingly and proceed
to pass the following order :-
ORDER
1. S. C. Suit No.1377 of 2019 is hereby partly decreed
with costs.
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..6.. S. C Suit No.1377/2019
2. Plaintiff do recover an amount of Rs.2,78,304.59/-
from defendants alongwith interest at the rate of 9%
per annum from 08/03/2019, till realisation of entire
amount.
3. Decree be drawn up accordingly.
(Judgment dictated and pronounced in open Court)
(Shaikh Akbar Shaikh Jafar)
Judge,
City Civil Court, Mazgaon, Mumbai
Dated : 20/09/2024 C.R. No.84
Dictated and typed on : 20/09/2024.
Draft checked on : 21/09/2024.
Signed by HHJ on : 21/09/2024.
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..7.. S. C Suit No.1377/2019
“Certified to be true and correct copy of the original signed order”.
24/09/2024
at about 11.25 a.m.
(Ms. Sonali S. Sawant)
Stenographer (Grade-III)
Name of the Hon'ble Judge : Shaikh Akbar Shaikh Jafar,
Judge, City Civil Court &
Addl. Sessions Judge, Court
Room No.84, Mazgaon, Mumbai
Date of pronouncement of Order : 20/09/2024
Order signed by Hon'ble Judge on : 21/09/2024
Order uploaded on : 24/09/2024
at about 11.25 a.m.
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