Final Order 1

Order Details: Copy of Judgment
Pdf Text: Judgment in
SU 1819 of 2019 .. 1.. (Exh.39)
MHCC010037132018
Presented on : 17-03-2018
Registered on : 06-04-2018
Decided on : 17-09-2022
Duration : 4 yrs, 6 mths, 0 dys
IN THE CITY CIVIL COURT FOR GR. BOMBAY AT MUMBAI
SHORT CAUSE SUIT NO.1819 OF 2019
(Exh. 39)
IDBI Bank Limited. ]
A bank incorporated and registered under the ]
Indian Companies Act, 1956 (1 of 956) and also ]
a Banking Company under Section 5(c) of the Banking ]
Regulation Act, 1949 [10 of 1949], having its registered]
address at IDBI Tower, WTC Complex, Cuffe Parade, ]
Mumbai 400 005 and having one of its branches ]
at Indu House, Veer Savarkar Marg, Prabhadevi ]
Mumbai 400 025. ] ....Plaintiff
V/s
1. M/s Rui Tours and Travels, ]
Prop Suresh Kasare, having address ]
at Room No.89/A, Garib Janata Nagar, Rahiwasi Sangh,]
Cap Prakash Pethe Marg, Colaba, ]
Mumbai 400 005 ]
2. Mr Suresh Kasare ]
Adult Male, Indian inhabitant, having address ]
at Room No.89/A, Garib Janata Nagar, Rahiwasi Sangh,]
Cap Prakash Pethe Marg, Colaba, ]
Mumbai 400 005 ]
3. Mrs Rutuja Paradale ]
Adult Female, Indian inhabitant, having address ]
at Room No.3/4, Dhanpal Singh Chawl No.1, ]
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Akurli Road, Vadar Pada Road, Near Trimurti Chawl, ]
Hanuman Nagar, Kandiwali, Mumbai 400 010. ]….Defendants
Appearance:
Adv. Mrs. A. W. Barve for the plaintiff.
Defendant Exparte.
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.5,72,588.57 with
further interest at the rate of 11.25 % 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 of
Rs.6,00,000/ vide application dated 24.09.2015 and submitted
proforma invoice dated 29.07.2015 of Ritu Automobiles Pvt. Ltd., a
dealer of Hyundai Cars. As per the proforma invoice, the onroad price
of the car was Rs.6,72,527/.
3. It is further the case of the plaintiff that at the request of
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the defendants, plaintiff sanctioned Term Loan of Rs.6,00,000/ to the
defendants on 28.09.2015. The defendants signed and accepted the
terms and conditions of the sanction and executed security documents
in favour of the plaintiff. The plaintiff disbursed the loan amount
Rs.6,00,000/ to defendant No.1. The vehicle is registered with
No.MH01BT7112. The charge of the plaintiff is noted 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
10.03.2017 it is classified as NPA. A sum of Rs.5,72,588.57 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.5,72,588/ is due from
the defendants?
Partly affirmative
against defendant
Nos.1 & 2 only.
2. Whether plaintiff bank is
entitled to recover the
above amount from
Partly affirmative
against defendant
Nos.1 & 2 only.
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defendants?
3. Whether plaintiff bank is
entitled for interest on
above amount? If yes, at
what rate?
In the affirmative.
Interest at 11.25 %
p.a.
4. What order and decree? Suit is partly
decreed.
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 Subesh Kumar
Branch Manager of the plaintiff has filed his affidavit of
examination in chief at Exh.6. All the documents produced on
record are duly proved in the evidence of the above witness.
8. Document at Exh.8 is the application for term loan by the
defendant No.1. Exh.9 is Proforma Invoice of Ritu Automobiles Pvt. Ltd.
dated 23.09.2015 for Hyundai Xcent. It shows on road price of the
vehicle as Rs.6,72,527/. Document at Exh.10 is the receipt of margin
money. Document at Exh11 is the Sanction Letter dated 28.09.2015
under which plaintiff sanctioned term loan of Rs.6,00,000/ to the
defendant No.1. Exh.12 is the Demand Promissory Note issued by
defendant No.1. Exh.13 is the Demand Promissory Note Delivery Letter.
Exh.14 is HypothecationcumLoan Agreement dated 28.09.2015.
Exh.15 is the letter of Authority. Exh.16 is the Declaration by defendant
No.1. Exh.17 is the undertaking given by defendant No.1. The above
documents establish that on the application of the defendant No.1, the
plaintiff bank sanctioned term loan of Rs.6,00,000/ to the defendant
Nos.1 & 2 for purchase of a car. As per the above documents, the loan
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carried interest at the rate of 11.25 % p.a. and was payable in 60
installments of Rs.13,271/, each.
9. Exh.18 is Common Guarantee Deed dated 28.09.2015
purportedly signed by defendant Nos.2 and 3. Perusal of the said deed
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 cannot
be said to be a complete and valid deed of guarantee, so as to enforce
liability on its basis.
10. Document at Exh.19 is the Tax Invoice received from Ritu
Automobiles Pvt. Ltd. in respect of the vehicle. Exh.20 is the debit note.
Exh.21 is the copy of registration certificate of the vehicle. The said
document is not legible. The above documents further establish that
pursuant to the sanction of the loan, the defendant No.1 purchased the
vehicle from Ritu Automobiles Pvt. Ltd. However, in absence of legible
copy of registration certificate, it cannot be inferred that it’s charge is
noted in the registration certificate of the vehicle.
11. The document at Exh.37 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.5,68,133.34 as on 09.03.2018 was the balance outstanding amount.
Plaintiff has charged unapplied interest Rs.6,600.23 from 10.02.2018 to
17.03.2018 at the rate of 11.25 % p.a. The compounding effect of penal
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interest Rs.2142/ is deducted from the above amount. Documents at
Exhs.22 to 36 are the demand notices issued by the plaintiff to
defendants.
12. The documents coupled with the unchallenged evidence of
PW1 establish that a sum of Rs.5,72,588/ is due and payable by the
defendant No.1 against the loan account. The suit is within limitation
and thus the plaintiff is entitled to recover the above amount from the
defendant No.1 as borrower and defendant No.2 as the proprietor, with
interest at the rate of 11.25 % 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. 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. 1819 of 2019 is partly decreed with costs.
2. Defendant Nos.1 and 2, jointly and severally, shall pay an
amount of Rs. 5,72,588/ to plaintiff with interest at the rate of
11.25 % p.a. from date of the suit till its realization.
3. Decree be drawn up accordingly.
4. Suit No. 1819 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.
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CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER”
20.09.2022 at 4.00 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
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