Final Order 1

Order Details: Copy of Judgment
Pdf Text: : 1 : Suit No.1365 of 2018
CNR No. MHCC010048472018
Lodged on : 12.04.2018
Registered on : 05.06.2018
Decided on : 21.01.2019
Duration : 00 Y 09 M 10 D
Exhibit –41
IN THE BOMBAY CITY CIVIL COURT AT BOMBAY
S.C. SUIT NO. 1365 OF 2018
IDBI Bank Limited,
a company incorporated and registered
under the Indian Companies Act, 1956
[1 of 956] and also a banking company under
section 5(c) of Banking Regulation Act of 1949
[10 of 1949], having its registered office
at IDBI Tower, WTC Complex, Cuffe Parade,
Mumbai – 400 005, and having one of
its branches amongst other places at
Indu House, Veer Savarkar Marg,
Prabhadevi 400 025. .. Plaintiffs
Versus
1. M/s. Gulabshah Tours and Travels,
Proprietor Hasan Kazi
Having address at 70, Floor3,
12 BDD Chawl, G.M.Bhosale Marg,
Worli, Mumbai 400 018.
2. Mr. Hasan Mainuddin Kazi,
male, adult, Indian Inhabitant,
Having address at 70, Floor3,
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12 BDD Chawl, G.M.Bhosale Marg,
Worli, Mumbai 400 018.
3. Mr. Husain Mainuddin Kazi,
male, adult, Indian Inhabitant,
Having address at 70, Floor3,
12 BDD Chawl, G.M.Bhosale Marg,
Worli, Mumbai 400 018. .. Defendants
Appearance :
Ld. Advocate Anita Murgude for plaintiff.
None for defendants.
CORAM : HIS HONOUR JUDGE
SHRI ANAND L. YAWALKAR
(COURT ROOM NO. 31)
DATED : 21.01.2019
Claim : Suit for recovery
: JUDGMENT :
1. Plaintiff filed the suit for recovery of Rs.7,81,246.75 with
interest @ 11.25% p.a. alongwith penal interest.
2. Case of plaintiff in brief :
Plaintiff is a company incorporated and registered under the
Indian Companies Act, 1956 [1 of 1956] and also a banking company
under section 5(c) of Banking Regulation Act, 1949 [10 of 1949].
Defendant no. 1 is the borrower, who had approached the plaintiff for
term loan to purchase the car. Defendant no.2 is the proprietor of
defendant no.1 and guarantor. Defendant no. 3 is the guarantor who
guaranteed the repayment of the term loan. Defendant no. 1 applied to
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the plaintiff bank for term loan of Rs. 9,40,406/ for purchasing of car
to be used as Taxi vide application dated 18.09.2015. Defendant no. 2
submitted proforma invoice dated 20.08.2015 by Ritu Authomobiles
Ltd., authorized dealers of Nissan of Model Sunny XLD for Rs.
11,06,360/. On request of the defendants plaintiff sanctioned loan for
Rs. 9,40,406/. Defendants agreed to pay the loan amount alongwith
interest @ 11.75% p.a. The defendants executed all the necessary
documents in favour of plaintiff. Defendants failed and neglected to
repay the loan amount. As per the contention of the plaintiff bank
suit is within limitation. Hence, plaintiff filed suit for recovery of
amount.
3. Inspite of summons, defendants failed to appear. Suit
proceeded exparte against defendant.
4. On aforesaid facts and circumstances, following points arise
for my determination. I have recorded my findings to them together
with reasons as under.
POINTS FOR DETERMINATION FINDINGS
1. Whether plaintiff bank proves that
an amount of Rs. 7,81,246.75 is
due and payable by defendants ? In the affirmative
2. Whether plaintiff bank is entitled
for recovery of Rs. 7,81,246.75
with interest @ 11.25% p.a. along
with penal interest as prayed ?
In the affirmative
3. What order and decree ? Suit is decreed as per final
order
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: REASONS :
As to Point Nos.1 to 3 :
5. In support of its contention, plaintiff bank filed an affidavit of
Subesh Kumar as their witness. He relied upon application for term
loan, proforma invoice, sanction letter, demand promissory note,
declaration, letter of authority, Hypothecation cum loan agreement,
common guarantee deed, undertaking, tax invoice, registration
certificate, demand notices for overdue amount, demand notices, recall
notice and notice for invocation of guarantee. All these documents filed
by plaintiff shows that defendant no. 1 had applied for term loan.
Defendant no. 2 and 3 stood as guarantor. Statement of account filed,
which denotes that defendants had failed to repay the loan. Demand
notices were issued by the plaintiff. Defendants failed to repay the
amount.
6. Plaintiff bank had all the documents executed in their favour.
There cannot be any doubt about the claim of plaintiff bank considering
the oral and documentary evidence. Due to the absence of the
defendant the pleadings and evidence filed on record by plaintiff goes
unchallenged. Further, the loan was sanctioned on 22.09.2015.
Documents are executed and amount is disbursed and thereafter on
08.08.2017 account was classified as NPA. Demand notice was issued
on 13.10.2017. The suit is filed on 12.04.2018. Thus, the suit is within
limitation. Hence, considering this plaintiff bank is entitled to recover
the loan amount. Plaintiff had claimed the rate of interest at @ 11.25%
p.a. along with penal interest. The interest prayed is accordingly
granted. Hence, considering this I answer points no. 1 and 2 in the
affirmative and accordingly, pass the following order.
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: ORDER :
1. Suit is decreed.
2. Defendants no. 1 to 3 shall jointly and severally pay Rs.
7,81,246.75 to plaintiff within 3 months from the date of
suit with interest @ 11.25% p.a. on principal amount till
its actual realization.
3. In the given circumstances, defendants to pay the cost to
plaintiff.
4. Defendant or any person claiming through him are
restrained by an order of injunction from alienating or
creating third party interest in the Hypothecated Nissan
Sunny XL, Registration No. MH01BT6950 till the
recovery of entire decreetal amount.
5. Decree be drawn up accordingly.
Anand.L.Yawalkar
Judge,
City Civil & Sessions Court,
Date: 21.01.2019 Gr. Mumbai
Dictated on : 21.01.2019
Transcribed on : 22.01.2019
Signed on : 22.01.2019
“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER.”
On 24.01.2019 at 11.05 a.m.
UPLOAD DATE AND TIME Mrs. P.R.Vengurlekar
NAME OF STENOGRAPHER
Name of the Judge
(With Court Room No.)
H.H.J. Anand.L.Yawalkar
C.R.No.31
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Date of Pronouncement of
JUDGMENT/ORDER
21.01.2019
JUDGMENT/ORDER signed by P.O. on 22.01.2019
JUDGMENT/ORDER uploaded on 24.01.2019
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