Final Order 1

Order Details: Ex-parte Judgement
Pdf Text: MHCC010042232020 Presented on 21/09/2020
Registered on 19/12/2020
Decided on 03/07/2024
Duration 03Y: 09M: 12D
Exhibit 20
IN THE CITY CIVIL COURT AT MAZGAON, MUMBAI
SUMMARY SUIT NO. 582 OF 2020
Bank of Baroda, a Bank, a body Corporate ]
Constituted under the Banking Companies ]
(Acquisition and Transfer of Undertakings ]
Act1970, having their Head Office at Baroda ]
Bhawan, R.C.Dutt Road, “Alkapuri”, ]
Baroda, Gujarat State and having one of its ]
Branch Office amongst others known as Chembur ]
Branch situated at Fairlawn Cooperative Housing ]
Society Ltd., Plot No. 7, S.T. Road, Chembur, ]
Mumbai 400 071, through its Constituted ]
Attorney Mr. Putul Thirki, Chief Manger ]
of the plaintiff. ]...Plaintiff
V/s.
Mrs. Sanjivani S. Mandave ]
Proprietrix of M/s. Sanjivani Construction ]
Adult, Age: Not known, Indian Inhabitant, ]
having address at Room No. 60/1/4, Ayodhya ]
CHS, Vashi Naka, RC Marg, Chembur, ]
Mumbai 400 074. ]...Defendant
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2 SUM SU NO. 582/2020
Appearance:
Ld. Advocate Prashant A. Shinde i/b. Anant B. Shinde and Co. for the
plaintiff.
Defendant absent (Exparte).
CORAM : HHJ SHRI SANGRAM SHRIHARI SHINDE
C. R. NO. : 81
DATE : 03/07/2024
JUDGMENT
( Dictated and pronounced in open Court)
01. This is the suit filed under Rule 2 of Order XXXVII of Code
of Civil procedure, 1908 (CPC) for recovery of amount of Rs. 87,035/
alongwith interest from defendant.
Brief facts of plaintiff’s case may be summarized as under:
02. The plaintiff is a body corporate constituted under the
Banking Companies (Acquisition and Transfer of Understanding) Act,
1970, having its Head Office at Baroda Bhavan, R. C. Dutt Road,
'Alkapuri' Baroda, Gujarat state and one of its Branch Office amongst
others known as Chembur Branch, situated at Fairlawn Cooperative
Housing Society, Plot No. 7, S. T. Road, Chembur, Mumbai 400071.
The plaintiff interalia is carrying on business of banking. The
defendant is the proprietress of M/s. Sanjivini Construction.
03. As per the plaintiff at the request of defendant personal
loan of Rs.1,40,000/ was granted to the defendant vide Sanction
Letter dated 25/09/2017 as per terms and conditions mentioned
therein. Further, as a security to loan the defendant had executed
necessary documents on 25/09/2017 i.e. Demand Promissory Note for
Rs. 1,40,000/, Letter of Installments with Acceleration Clause and
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Composite Undertaking Cum Declaration. The defendant was to repay
said loan by monthly installment of Rs. 3,729/. However, defendant
failed to repay the said loan therefore, account was declared was
N.P.A. on 31/08/2019. As defendant failed to repay the loan, legal
notice was issued on 23/07/2020 and called upon the defendant to
repay the loan with interest. The plaintiff has maintained loan account
No. 06690600001383 of the defendant. The defendant is liable to pay
an amount of Rs. 87,035/ with interest at the rate of interest 12% p.a.
Hence, this suit.
04. The defendant was served with the writ of summons by
way of substitute service i.e. summons was published in two news
papers on 19/01/2023. The plaintiff has filed affidavit of service at
Exh. 3. Despite service, the defendant has not caused her appearance
and therefore, the suit proceeded exparte against her by the order
dated 17/02/2023.
05. In support of claim, the plaintiff filed affidavit of claim of
Ms. Akshata S. Malpe as P.W.1, Authorized Officer of the plaintiff bank
at Exh. 4 and additional evidence on affidavit at Exh. 17 and reiterated
its contention of recovery of Rs. 87,035/ along with further interest
on the said amount at the rate of 12% p.a. The plaintiff has filed and
relied upon the following documents.
Sr.
No. Exhibit No. Particulars
1 Exh.6 Authority Letter of Ms. Akshatha S. Malpe dated
11/11/2022
2 Exh.7 Letter of Sanction dated 25/09/2017
3 Exh.08 Demand Promissory Note for Rs.1,40,000/ dated
25/09/2017
4 Exh.09 Letter of Installment with Acceleration Clause dated
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25/09/2017
5 Exh.10 Composite Undertaking cum Deceleration dated
25/09/2017
6 Exh.11 Office copy of plaintiffs’ Advocate Legal Notice dated
23/07/2020 addressed to the defendant
7 Exh.12 Returned Envelopes received from the postal
authorities
8 Exh.13 Statement of Account in respect of personal loan
A/c. No.06690600001383
9 Exh.14 Certificate under the Banker’s Books of Evidence Act,
1891 and Section 65 B of the Evidence Act, 1891
dated 13/04/2023
06. To decide the present suit, following points arise for my
determination to which my findings are recorded against each of them
for the reasons given below:
Sr.
No.
Points Findings
1. Whether the plaintiff is entitled to
recover an amount of Rs. 87,035/
from defendant?
If yes, at what rate of interest?
Yes.
Entitled to interest @ 12%
per annum on Rs. 80,120/
from 21/09/2020 the date of
filing of suit till its full
realization.
2. What order and decree? As per final order.
R E A S O N S
AS TO POINTS NO. 1 AND 2 :
07. It is argued on behalf of the plaintiff bank that on the
request of the defendant personal loan of Rs. 1,40,000/ was advanced
to her. She agreed to repay it in monthly installments alongwith
interest at the rate of 12% p.a. Further, defendant has executed
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necessary documents which plaintiff has proved the same by oral as
well as documentary evidence. As defendant failed to repay loan
amount therefore, plaintiff bank is entitled to recover an amount of
Rs. 87,035/ alongwith interest at the rate of 12% p.a. till its
realization.
08. The plaintiff bank in support of their case has filed the
claim affidavit of its witness Ms. Akshata Malpe P.W.1, Authorized
Officer of the plaintiff bank at Exh. 4 and 17 who has reiterated
contention in the plaint. She is authorized by Authority Letter dated
11/11/2022 at Exh. 6 to contest the case. Further, plaintiff bank also
filed the original documents i.e. Sanction Letter at Exh. 7, Original
Demand Promissory Note at Exh.8, Letter of Installment and
Acceleration Clause at Exh. 9, Original Undertaking Cum Declaration
at Exh. 10, office copy of demand notice dated 23/07/2020 at Exh. 11,
Returned Envelope at Exh. 12, Computerized Generated Statement of
account at Exh. 13 and Certificate under Section 2a(A) of Banker's
Book of Evidence Act at Exh. 14. On perusing said documents, it
appears that the defendant had borrowed personal loan of
Rs. 1,40,000/ which was sanctioned vide Sanction letter at Exh. 7.
Further, defendant has executed Demand Promissory Note at Exh. 8,
Letter of Installment at Exh. 9, Undertaking Cum Declaration at
Exh. 10. Thus, on perusing said documents, it appears that defendant
has agreed to repay said loan in installment with interest. The plaintiff
bank to prove that defendant failed to pay loan installments and
amount is outstanding against her has filed Computerized Generated
Statement of account at Exh. 13 alongwith Certificate under Section
2a(A) of Banker's Book of Evidence Act at Exh. 14. As the defendant
failed to appear, the evidence of the plaintiff bank has remained
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unchallenged.
09. Thus, the plaintiff bank has proved that the defendant
had taken the loan of Rs. 1,40,000/ on 25/09/2017. As defendant
failed to repay loan installments therefore, her loan account became
N.P.A. on 31/08/2019. As defendant failed to repay loan plaintiff bank
issued demand notice at Exh. 11 to the defendant. Further, it appears
that said notice is returned with remark 'intimation delivered' vide
envelope at Exh. 12. As discussed above Statement of account shows
that loan amount Rs. 87,035/ was outstanding as on 18/09/2020.
Hence, I hold that on the basis of oral and documentary evidence of
plaintiff bank, it is proved that plaintiff bank is entitled to claim
amount of Rs. 87,035/.
10. So far as prayer of interest on the said amount is
concerned, the plaintiff bank has claimed 12% p.a. interest on the said
amount. The plaintiff has calculated the interest Rs. 6,915/ at the rate
of 12% per annum. On perusing letter of installment, it appears that
rate of interest mentioned as 2% p.a. Further, in Demand Promissory
Note at Exh. 8, it is mentioned as 4% p.a. However, legal notice at
Exh. 11 it is mentioned as 2% monthly with 2% penal interest and in
the prayer in the suit it is mentioned as 12% p.a. with monthly 2%
penal interest. Thus, it appears that there is no document on record to
show that rate of interest was agreed as 12% p.a.
11. I hold that the plaintiff is entitled to the further interest
on the principal amount from the date of filing the suit till realization
of said amount. The plaintiff has prayed for the further interest at the
rate of 12% per annum. However, I am of the view that the same is
excessive as compared to rate of interest of Nationalized Banks.
Plaintiff has proved that 12% interest rate was agreed between the
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parties as per Sanction Letter at Exh.7. Hence, I hold that the plaintiff
is entitled to further interest at the rate of 12% per annum on the
principal amount, from the date of filing the suit till its full realization.
Hence, I answer point No. 1 accordingly. In the result, in answer to
point No. 2, I proceed to pass following order.
O R D E R
1) Summary Suit No. 582/2020 is hereby decreed with the costs.
2) The defendant shall pay an amount of Rs. 87,035/ (Rupees
Eighty Seven Thousand and Thirty Five only) to the plaintiff.
3) The defendant shall pay to the plaintiff simple interest on
Entitled to interest @ Rs. 12% per annum on Rs. 80,120/ from
21/09/2020 the date of filing of suit till its full realization.
4) The plaintiff may be entitled to get refund the court fees paid, if
provided for in Rules.
5) The decree be drawn up accordingly.
(Sangram S.Shinde)
Judge, City Civil Court Gr. Mumbai
Court Room No.81
Date: 03/07/2024
Dictated on: 03/07/2024
Corrected & signed on: 05/07/2024
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“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER”
UPLOAD DATE NAME OF STENOGRAPHER
05/07/2024 Mrs. V. V. Malgaonkar
Name of the Judge
(with Court Room No.)
Shri S. S. Shinde
C.R. No.81
Date of Pronouncement of JUDGMENT/
ORDER 03/07/2024
JUDGMENT/ORDER signed by P. O. on 05/07/2024
JUDGMENT/ORDER uploaded on 05/07/2024
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