Order 1

Order Details: Copy of Judgment
Pdf Text: Judgment in
SU 1818 of 2019 .. 1.. (Exh.35)
Lodged on :17/03/2018
Registered on :06/04/2018
Decided On :17/09/2022
Duration :4Y:6M;1D
IN THE CITY CIVIL COURT FOR GR. BOMBAY AT MUMBAI
SHORT CAUSE SUIT NO.1818 OF 2019.
Exh. 35.
IDBI Bank Ltd. ]
A bank incorporated and registered under the ]
Indian Companies Act, 1956 and also a Banking ]
Company under Section 5(c) of the Banking Regulation ]
Act, 1949, having its registered address at ]
IDBI Tower, WTC Complex, Cuffe Parade, ]
Mumbai 400005 and having one of its branches ]
at Indu House, Veer Savarkar Marg, Prabhadevi, ]
Mumbai 400 025. ] ....Plaintiff
V/s
1. M/s More Travels, ]
Prop Eknath More, having address ]
at 105/44, Kamgar Nagar No.2, Dhanmill Naka, ]
Prabhadevi Road, Samna Press, Prabhadevi, ]
Mumbai 400 025 ]
2. Mr Eknath More ]
Adult Male, Indian inhabitant, having address ]
at 105/44, Kamgar Nagar No.2, Dhanmill Naka, ]
Prabhadevi Road, Samna Press, Prabhadevi, ]
Mumbai 400 025 ]
3. Mrs Rejeshri Kadu ]
Adult Female, Indian inhabitant, having address ]
at 208/2, Prabhadevi CHS, Rajabhau Desai Road, ]
Behind ICICI Prudential Life Insurance, Prabhadevi, ]
Mumbai 400 083 ]….Defendants
Appearance:
Adv. Mrs. A. W. Barve for the plaintiff.
Defendant Exparte.
-- 1 of 7 --
Judgment in
SU 1818 of 2019 .. 2..
SUIT FOR RECOVERY OF MONEY
Coram : His Honour Judge
Shri. S. B. Pawar.
CR No. : 59.
Date : 17/09/2022
JUDGMENT
This is a suit for recovery of a sum of Rs.4,36,243.28 with
further interest at the rate of 11.50 % p.a. from the date of suit.
Case of the plaintiff in nutshell is as under:
2. Plaintiff is a company incorporated and registered under
the Companies Act, 1956 and also a banking company under the
Banking Regulation Act, 1949. The Defendant No.1 is a borrower who
had approached the plaintiff for Term Loan to purchase a car to be used
as a taxi. Defendant No.2 is proprietor and a guarantor. Defendant No.3
is also a guarantor. Defendant No.1 applied for Term Loan vide
application dated 17.08.2015 and submitted proforma invoice dated
29.07.2015 of Vitesse Pvt. Ltd., a dealer of Maruti Suzuki Cars. As per
the proforma invoice, the onroad price of the car was Rs.6,64,964/.
3. It is further the case of the plaintiff that at the request of
the defendants, plaintiff sanctioned a Term Loan of Rs.5,89,000/ to the
defendant Nos.1 on 20.08.2015. The defendants signed and accepted
the terms and conditions of the sanction and executed security
documents in favour of the plaintiff. Defendant No.1 paid down
payment of Rs.50,000/ for the car on 19.08.2015. The plaintiff paid
Rs.5,89,000/ to Vitesse Pvt. Ltd. The vehicle is registered with
-- 2 of 7 --
Judgment in
SU 1818 of 2019 .. 3..
No.MH01BT6459. The charge of the plaintiff is registered on the
registration certificate of the vehicle.
4. Plaintiff further pleaded that after availing the loan, the
defendant No.1 made default in payment of EMI and interest.
Defendant No.1 failed to regularize the account and finally on
08.01.2017 it is classified as NPA. A sum of Rs.4,36,243.28 as on
17.03.2018 is due and payable by the defendants under the said term
loan. Defendants failed to repay the amount despite of demand made by
the plaintiff. Therefore, present suit is filed for recovery of the same.
5. Defendants are duly served with writ of summons but they
failed to appear in the suit. Therefore, the suit proceeded exparte
against the defendants.
6. Following points arise for my determination to which
findings have been recorded for the reasons discussed below.:
Sr. No. Points Findings
1. Whether plaintiff bank proves
that an amount of Rs.4,36,243/
is due from the defendants?
Partly affirmative
against defendant No.1 &
2 only.
2. Whether plaintiff bank is
entitled to recover the above
amount from defendants?
Partly affirmative
against defendant Nos.1
& 2 only.
3. Whether plaintiff bank is
entitled for interest on above
amount? If yes, at what rate?
In the affirmative.
Interest at 11.5 % p.a.
4. What order and decree? Suit is partly decreed.
-- 3 of 7 --
Judgment in
SU 1818 of 2019 .. 4..
R E A S O N S
As to Point Nos. 1 To 4:
7. In order to prove the suit claim, P.W.1 Darshan A.
Jeurkar, Branch Manager of the plaintiff has filed his affidavit of
examination in chief at Exh.4. All the documents produced on
record are duly proved in the evidence of the above witness.
8. Document at Exh.6 is the application for term loan by the
defendant No.1. Exh.7 is Proforma Invoice of Vitesse Pvt. Ltd. dated
29.07.2015 for Dzire Tour. It shows on road price of the vehicle as
Rs.6,64,964/. Documents at Exhs.8 and 9 are the receipts issued by
Vitesse Pvt. Ltd. Document at Exh.10 is the Sanction Letter dated
20.08.2015 under which plaintiff sanctioned term loan of Rs.5,89,000/
to the defendant No.1. Exh.11 is the Demand Promissory Note issued by
defendant No.1. Exh.12 is the Demand Promissory Note Delivery
Letter. Exh.13 is HypothecationcumLoan Agreement dated
21.08.2015. Exh.14 is the Declaration by defendant No.1. Exh.15 is the
letter of Authority. Exh.17 is the undertaking given by defendant No.1.
Document at Exh.18 is the receipt dated 26.08.2015 issued by Vitesse
Pvt. Ltd. The above documents establish that on the application of the
defendant No.1, the plaintiff bank sanctioned term loan of
Rs.5,89,000/ to the defendant No.1 for purchase of a car. As per the
above documents, the loan carried interest at the rate of 12 % p.a. and
was payable in 60 installments of Rs.13,102/, each.
9. Exh.16 is Common Guarantee Deed dated 21.08.2015
purportedly signed by defendant Nos.2 and 3. Perusal of the said deed
-- 4 of 7 --
Judgment in
SU 1818 of 2019 .. 5..
depicts that the details regarding the borrower and the loan are not
written in the deed. Merely names of defendant Nos.2 and 3 are written
and it contains their signatures. The terms and conditions are in the
printed format however, important fields are left blank. In absence of
the specific details of the loan and the borrower, this document can not
be said to be a complete and valid deed of guarantee, so as to enforce
liability on its basis.
10. The plaintiff has not produced copy of registration
certificate of the vehicle bearing registration No.MH01BT6459.
Though there is hypothecation agreement, the details of the vehicle are
not mentioned in the agreement. In absence of any documentary
evidence, no inference can be drawn that the said vehicle is registered
in the name of defendant No.1 or charge of the loan is transferred to
the registration certificate.
11. The document at Exh.33 is the statement of the loan
account. It is accompanied with the necessary certificate under Section
65B of the Evidence Act. As per the said statement, an amount of
Rs.4,31,626.28 as on 06.03.2018 was the balance outstanding amount.
Plaintiff has charged unapplied interest Rs.5,002/ from 10.02.2018 to
17.03.2018 at the rate of 11.5 % p.a. The compounding effect of penal
interest Rs.385/ is deducted from the above amount. Documents at
Exhs.29 to 32 are the demand notices issued to defendants.
12. The documents coupled with the unchallenged evidence of
PW1 establish that a sum of Rs.4,36,243/ is due and payable by the
defendant No.1 against the loan account. The suit is within limitation
-- 5 of 7 --
Judgment in
SU 1818 of 2019 .. 6..
and thus the plaintiff is entitled to recover the above amount from the
defendant No.1 as borrower and defendant No.2 as its proprietor with
interest at the rate of 11.5 % from the date of suit. However, the
guarantee deed is invalid for the lack of requisite details of the loan and
borrower. Therefore, on the basis of the deed of guarantee, the liability
cannot be enforced against the defendant No.3. Moreover, in absence of
relevant documents, relief of declaration regarding charge upon vehicle
bearing registration No. MH01BT6459 cannot be granted. Therefore,
point Nos.1 and 2 are answered as partly affirmative against defendant
Nos.1 and 2 only, point No.3 is answered in the affirmative and
following order is passed:
ORDER
1. Suit No. 1818 of 2019 is partly decreed with costs.
2. Defendant Nos.1 and 2 jointly and severally, shall pay an
amount of Rs. 4,36,243/ to plaintiff with interest at the rate of
11.5 % p.a. from date of suit till its realization.
3. Decree be drawn up accordingly.
4. Suit No.1818 of 2019 is disposed of accordingly.
(S.B. Pawar)
Judge,
Dated: 17/09/2022 City Civil and Sessions Court,
Greater Bombay (CR 59).
Declared on : 17.09.2022
Direct Typed on : 17.09.2022
Checked & Signed on : 20.09.2022
-- 6 of 7 --
.. 7..
CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER”
20.09.2022 at 1.00 p.m. Mrs. P.R.Wagh
UPLOAD DATE AND TIME NAME OF STENOGRAPHER
Name of the Judge (with Court
Room No.)
HHJ SHRI.S.B.Pawar,(C.R.No.59)
Judge.,City Civil & Sessions Court,
Date of pronouncement of /Order 17.09.2022
Order signed by P.O. on 20.09.2022
order uploaded on 20.09.2022
-- 7 of 7 --