Final Order 1

Order Details: Ex-parte Judgement
Pdf Text: 1 Judgment in Commercial Suit No. 761/2021
Lodged on : 26.03.2018
Admitted on : 21.01.2019
Decided on : 20.08.2022
Duration : Y M D
4 4 25
COMMERCIAL SUIT NO. 761 OF 2021
(OLD S.C.SUIT NO. 228 OF 2019)
CNR NO. : MHCC010041012018
Exh.18
Dena Bank, a body corporate
Constituted under the Banking Companies
(Acquisition & Transfer of Undertakings)
Act, 1970 having its Head Office at Dena
Corporate Center, C10, 'G' block,
Bandra Kurla Complex, Bandra (E),
Mumbai – 400 051
And one of its branch office amongst
others known as situated at as Dena Bank,
Matunga Branch, having address at
Maheshwari Udyan, Matunga Branch,
467A, Vora Bhavan, Matunga,
Mumbai – 400019, State of Maharashtra
represented by Mr. Amit Banarjee,
Age 44 year, Manager. ...Plaintiff
Versus
Mr. Sanjay Shivaji Aiwale
Room No. 95/476, Muslim Nagar,
Adult, 60 feet road, Dharavi,
Mumbai – 400 017
Also at,
A42, ½, Ground Floor, Muslim
-- 1 of 9 --
2 Judgment in Commercial Suit No. 761/2021
Nagar, Sant Kabir Marg, 60 Feet
Road, Matunga Labour Camp,
Dharavi, Mumbai – 400 017. ...Defendant
Appearance:
Adv. Arfat Shaikh for the Plaintiff.
Defendant exparte.
CORAM : SHRI. A.S.SALGAR
ADHOC JUDGE,
(C.R.NO.31)
DATED : 20th AUGUST 2022
J U D G M E N T
(Delivered on : 20.08.2022)
This is the suit instituted by the plaintiff for the recovery of
the amount of Rs.3,00,282.76 ps. against the defendant. Initially, the
suit came to be registered as S.C. Suit No. 228 of 2019. After scrutiny of
the papers, it came to be registered as Commercial Suit No. 761 of
2021.
The suit claim of the plaintiff is narrated in nutshell is as under:
2. The plaintiff is a body corporate constituted under the
Banking Companies Act 1970, having its head office at Bandra Kurla
Complex, Bandra (East). The defendant is an individual having its
address as mentioned in clause title of the suit. The defendant
approached with the plaintiff bank for a term loan for the purpose of
purchasing commercial vehicle for running Tours and Travels business
for Rs.4,00,000/ under 'Terms Loan/Working Capital Advances' for
purchase of a Car by making an application which was granted by the
plaintiff under SRTO Advances/Term Loan under Small Road Transport
Operators Scheme facilities dated 28.09.2015. Accordingly, the plaintiff
-- 2 of 9 --
3 Judgment in Commercial Suit No. 761/2021
had disbursed a sum under the Term Loan Facility of Rs.4,00,000/ to
the defendant. The defendant has executed various documents in favour
of the plaintiff. As per Sanction letter dated 28.09.2015, the plaintiff
bank sanctioned a loan of Rs.4,00,000/ to the defendant on terms and
conditions. In consideration of the plaintiff having granted the said
loan, the defendant executed the documents i.e. letter/undertaking
dated 28.09.2015, the invoice from Bafna Motors (Mumbai) Pvt. Ltd.,
Demand Promissory Note for Rs.4,00,000/, letter of General Lien and
Set Off for borrowing arrangements from the borrowers, Agreement for
Hypothecation, General Undertaking executed by the defendant. The
plaintiff further submit that the defendant promised to repay the said
loan along with interest. However, the defendant failed and neglected
to repay the said loan amount. He also failed to make monthly
installment to the plaintiff, as agreed. Therefore, the plaintiff by its
Advocate’s letter dated 13.01.2018 addressed to the defendant called
upon him to make payment of outstanding amount. The packet
containing the notice sent to the defendant was duly served upon him,
but he neglected to pay the entire due amount. The plaintiff bank in the
normal course of business maintained the accounts. At the foot of the
said account, there is due of Rs.3,00,282.76 ps. as on 26.03.2018, with
further interest at the rate of 11.55% per annum with monthly rests
from 01.06.2017. There is now due and payable by the defendant to the
plaintiff a sum of Rs.3,00,282.76ps. as on 26.03.2018. Hence, the
plaintiff has filed the suit for recovering the amount of Rs.3,00,282.76
ps. against the defendant along with future interest at the rate of
11.55% per annum from the date of suit till realization.
-- 3 of 9 --
4 Judgment in Commercial Suit No. 761/2021
3. The suit summons was issued to the defendant through
RPAD. The defendant has not claimed the said writ of summons. The
defendant is duly served, but he failed to appear before the Court.
Hence, as per order dated 21.09.2021, the suit was proceeded exparte
against the defendant.
4. From the above facts and circumstances, 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 proves that an
amount of Rs.3,00,282.76ps. is
outstanding from the defendant?
In the affirmative.
2) Whether plaintiff is entitled to
recover an amount of
Rs.3,00,282.76ps. from the
defendant. If yes, at what rate of
interest?
In the affirmative.
Amount of Rs. 3,00,282.76 ps.
with interest at the rate of Rs.12%
per annum on principal amount.
3) What order and decree? Suit is decreed with costs.
R E A S O N S
5. In order to establish the suit claim, the plaintiff has
examined Mr. Nishant Bansode at Exh.5. The plaintiff also filed on
record the documentary evidence i.e. Loan Application cum Sanction
Letter at Exh.8, Original Tax Invoice at Exh.9, Original Demand
Promissory Note at Exh.10, Original letter of General Lien at Exh.11,
Original General Undertaking at Exh.12, Original Agreement of
Hypothecation at Exh.13, office copy of Legal Notice at Exh.14 and
-- 4 of 9 --
5 Judgment in Commercial Suit No. 761/2021
Statement of Account at Exh.15. The evidence closure pursis of the
plaintiff is at Exh.17.
6. Heard Learned Advocate Mr. Arfat Shaikh for the plaintiff
at length.
As to point nos. 1 to 3
7. It is the case of the plaintiff that on the request of the
defendant, the plaintiff has sanctioned the loan of Rs. 4,00,000/ to the
defendant on 28.09.2015 on the terms and conditions and in
consideration of the said loan, the defendant has executed the various
documents in favour of the plaintiff and agreed to repay the loan
amount. According to the plaintiff, the total amount of Rs.3,00,282.76
ps. is outstanding from the defendant. At the outset, it is to be noted
that in this case the suit is not contested by the defendant. The
defendant has not filed any Written Statement on record. The averment
made by the plaintiff in the plaint is not denied or disputed by the
defendant by filing his Written Statement. It means the averment made
in the plaint is deemed to be admitted by the defendant.
8. According to the plaintiff, the loan was obtained by the
defendant on 28.09.2015. It is seen from the Statement of Account that
the defendant has made part payment on 25.06.2017. The suit is filed
by the plaintiff on 26.03.2018. If the said period is calculated from the
date of transaction, it is crystal clear that the suit is filed within
limitation of three years from the date of transaction. Therefore, it can
be said that the suit is within limitation.
-- 5 of 9 --
6 Judgment in Commercial Suit No. 761/2021
9. According to the plaintiff, the bank has sanctioned the loan
of Rs.4,00,000/ to the defendant for purchase of the Car. The
defendant has executed various documents in favour of the plaintiff
bank for obtaining the loan. In support of the pleading the plaintiff has
examined its Senior Manager namely Mr. Nishant Bansode at Exh.5. He
deposed in consonance with the averment made in the plaint. This
witness has specifically deposed that the defendant has obtained the
loan of Rs.4,00,000/ from the plaintiff and the defendant has executed
various documents in favour of the plaintiff. He also deposed that the
defendant executed the documents like Demand Promissory Note,
Letter of General Lien and Set Off, Agreement for Hypothecation,
General Undertaking dated 28.09.2015. The defendant failed to pay the
outstanding amount to the plaintiff. Therefore, the plaintiff sent notice
to the defendant and demanded the due amount. According to him, the
total amount of Rs.3,00,282.76ps. is outstanding from the defendant.
The aforesaid evidence of the plaintiff is not subjected to the cross
examination. The plaintiff’s oral testimony is not challenged by the
defendant. Therefore, I have no reason to disbelieve the version of the
plaintiff.
10. The oral evidence of the plaintiff is also supported by the
documentary evidence at Exh.8 to 15. All the documents shows that the
defendant has executed various documents in favour of the plaintiff
bank in order to obtain the loan. The defendant failed to make
repayment of the total loan amount. Therefore, the plaintiff was
constrained to send the legal notice to him. The notice is duly served to
the defendant, but the defendant failed to make repayment of the loan
amount as well as failed to send reply to the notice. The oral and
-- 6 of 9 --
7 Judgment in Commercial Suit No. 761/2021
documentary evidence tendered by the plaintiff goes to show that the
amount of Rs.3,00,282.76ps. is outstanding from the defendant.
Therefore, the defendant is liable to pay the outstanding amount of
Rs.3,00,282.76ps. to the plaintiff.
11. Thus, from the aforesaid discussion, it is concluded that the
plaintiff by leading oral and documentary evidence sufficiently proved
that the total amount of Rs.3,00,282.76ps. is outstanding from the
defendant. Therefore, the plaintiff is entitled to recover the said amount
from the defendant along with interest. As per the agreed terms, the
defendant is liable to pay interest at the rate of 12% per annum. Hence,
I hold that the rate of interest at the rate of 12% per annum would be
just and proper to be awarded on the principal sum. Hence, I answer
point nos. 1 and 2 in the affirmative and point no. 3 accordingly.
12. In view of discussion and finding of point nos. 1 and 2, it is
held that the plaintiff is entitled to recover an amount of
Rs.3,00,282.76ps. from the defendant along with interest at the rate of
12% per annum on the principal sum from the date of filing of the suit
till its realization. The plaintiff is also entitled to recover the cost of the
suit from the defendant. Hence, the suit is liable to be decreed. Hence, I
proceed to pass the following order:
ORDER
1) Commercial Suit No. 761 of 2021 is decreed with costs.
2) The defendant do pay to the plaintiff an amount of
Rs.3,00,282.76 ps (Rs. Three Lakh Two Hundred Eighty
Two and Seventy Six Paisa Only) with further interest
at the rate of 12% per annum on the principal amount
-- 7 of 9 --
8 Judgment in Commercial Suit No. 761/2021
from the date of filing of the suit till realization.
3) The defendant shall bear the costs 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 : 20.08.2022 (A.S. Salgar)
Adhoc Judge,
City Civil Court
Gr. Mumbai.
Dictated on : 20.08.2022
Typed on : 23.08.2022
-- 8 of 9 --
9 Judgment in Commercial Suit No. 761/2021
CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER”
UPLOAD DATE TIME NAME OF STENOGRAPHER
23.08.2022 5.20 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.
20.08.2022
Judgment/order signed by P.O on 23.08.2022
Judgment/order uploaded on 23.08.2022
-- 9 of 9 --