Order 1

Order Details: Ex-parte Judgement
Pdf Text: 1
Lodged on : 12/04/2018
Registered on : 05/06/2018
Decided on : 17/12/2020
Duration : 02Y 06M 12D
EXHIBIT46
IN THE BOMBAY CITY CIVIL COURT AT GREATER BOMBAY
S.C.SUIT NO. 291 OF 2020
(CNR NO. MHCC010048492018)
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. )...Plaintiff
Versus
1. M/s. Sai Laxmi Tours and Travels, Prop:Vijay Pawar )
Having address at Room No.8, Baidavi Apt.1st floor, )
Thane, Bhivandi, Thane421302. )
2.Mr.Vijay Pawar, Male, adult, Indian inhabitant )
Having address at Room No.8, Bhaidavi Apt. )
1st floor, Thane, Bhivandi, Thane 421302. )
3. Mr.Dhondiram Waghmare, Male, adult, )
Indian Inhabitant, Having address at )
Room No.14, Baidevi Apt. Kasheli, )
Bhiwandi, Thane 421302. ) ...Defendants.
-- 1 of 11 --
2
Appearance:
Ld.advocate Mrs.A.W.Barve for Plaintiff.
None for defendants.
CORAM : HHJ SHRI. R.V.KOKARE
DATE : 17/12/2020 (C.R.No.31)
Claim: Recovery of Amount.
JUDGMENT
This is a suit filed by plaintiff bank for recovery of amount of
Rs.4,90,279/ (Rupees Four Lakh Ninety Thousand Two Hundred
Seventy Nine only) with further interest at the rate of 11.25% p.a.
Brief facts of the case of the plaintiff bank are as under:
2. The defendant no.1 is the borrower who had approached the
plaintiff for term loan to purchase of car to be used as taxi. The
defendant no.2 is the proprietor of defendant no.1 and guarantor and
the defendant no.3 is guarantor who guaranteed the repayment of the
term loan. The defendant no.1 applied for term loan of Rs.6,00,000/
vide its application dated 22/09/2015. The defendant no.2 submitted
proforma invoice dated 23/09/2015 by Ritu Automobiles Limited. The
plaintiff sanctioned Term Loan under Small Road and Water Transport
Operators Scheme of Rs.6,00,000/ vide sanctioned letter dated
24/09/2015. The defendant no.2 submitted Receipt for Margin Money
dated 30/09/2015 by Ritu Automobiles Limited.
3. The plaintiff states that to secure the repayment of the said
Rs.6,00,000/, the defendants executed concerned documents as on
30/09/2015 in favour of the plaintiff bank which are mentioned in para
no.7 of the plaint. The plaintiff after considering the concerned
-- 2 of 11 --
3
documents executed by the defendants sanctioned Term Loan of
Rs.6,00,000/ to the defendant no.1. The defendant nos. 2 and 3 signed
common Guarantee Deed dated 30/09/2015. The Term Loan account
no.0026675100024596 was opened in the name of the defendant no.1
in the books of account of the plaintiff and as per letter of authority the
plaintiff disbursed the amount of Rs. 6,00,000/ to defendant no.1.
4. The account of defendant no.1 was not regular and therefore the
plaintiff addressed various letters to the defendant no.1 with respect to
the overdues in Term Loan Account on 03/12/2015 for the amount of
Rs.9,126/, on 30/12/2015 for the amount of Rs.12,417/, on
27/01/2016, for the amount of Rs. 25,712/ and on 29/02/2016 for the
amount of Rs.26,025/. The defendant no.1 failed to regularize the
account and therefore, the plaintiff addressed various letters to the
defendant no.1. Therefore, the plaintiff addressed demand notice to
defendant no.1 on 21/11/2016, for the overdue amount of Rs.50,774/,
on 28/11/2016 for the overdue amount of Rs.45,046/ and on
10/01/2017 for the overdue amount of Rs. 26,769/.
5. The plaintiff requested the defendant no.1 to regularize the Loan
Account but the defendant no.1 always promised to regularise the
account but failed and neglected to regularise the account. Ultimately,
the account of the defendant no.1 has been classified as NPA on
08/11/2016. The defendant nos. 1 to 3 are not ready and willing to
pay legal dues of the plaintiff. The plaintiff addressed Recall Notice
dated 13/02/2017 to defendant no.1 wherein amount of Rs.5,10,354/
consisting of Rs 4,99,728/ principal and Rs.10,626/ towards interest
was demanded with further interest thereon from 09/02/2017. The
-- 3 of 11 --
4
defendant no.2 as proprietor of defendant no.1 visited the branch after
receipt of Recall Notice and promised to regularise the account. The
plaintiff states that inspite of various promises, the defendants did not
regularise and or clear the account. The plaintiff addressed a Demand
Notice to defendant no.1 dated 20/02/2017 for the overdue amount of
Rs. 27,075/.
6. The plaintiff states that the amount of Rs.4,90,279/ is due
against the defendants as on 12/04/2018. The defendants failed to
repay the due amount to the plaintiff bank inspite of requests.
Therefore, the plaintiff is entitled to recover total amount of
Rs. 4,90,279/ as on 12/04/2018 alongwith further interest at the rate
of 11.25% p.a. Hence, this suit.
7. The suit is duly served on the defendants but the defendants
remained absent. Therefore, exparte order passed against the
defendant nos.1 and 3 on 27/08/2018 and defendant no 2 on
20/02/2019.
8. In view of pleadings of the plaintiff, heard Advocate Mrs.
A.W.Barve for plaintiff bank, following points arose for my
consideration. I have recorded my findings against each of the points
alongwith my reasons are as follows:
Sr.
No.
Points Findings
1. Does the plaintiff bank proves amount
of Rs.4,90,279/ is due as on
12/04/2018 against the defendants?
Yes
-- 4 of 11 --
5
2. Is plaintiff entitled to recover amount
of Rs.4,90,279/ from the defendants
alongwith further interest at the rate
of 11.25%p.a. ?
The plaintiff is entitled
to recover Rs.
Rs.4,90,279/
alongwith further
interest at the rate of
9% p.a. from filing of
the suit till its
realization.
3. What order and decree? As per final order.
REASONS
9. In order to prove the case of the plaintiff bank, the plaintiff has
examined its witness PW No.1 Subesh Kumar, Asstt. Manager,
Prabhadevi Branch, by way of affidavit at Exh4. In support of oral
evidence of the PW No.1, the plaintiff bank produced documentary
evidence under list of document at Exh.5. The plaintiff bank has closed
its evidence by filing closing pursis at Exh. 44. It is pertinent to note
that the oral as well as documentary evidence of the plaintiff bank has
gone unchallenged.
As to point nos. 1 and 2
10. On scrutiny of the oral evidence of PW No.1 Subesh Kumar,
Asstt. Manager of the plaintiff bank, it appears to me that the evidence
of PW No.1 is nothing but it is the reproduction of the contents of the
plaint. The PW No. 1 has deposed that the defendant no.1 is the
borrower who had approached the plaintiff for term loan to purchase of
car to be used as taxi. The defendant no.2 is the proprietor of defendant
no.1 and guarantor and the defendant no.3 is guarantor who
guaranteed the repayment of the term loan. The defendant no.1
applied for term loan of Rs.6,00,000/ vide its application dated
22/09/2015. The defendant no.2 submitted proforma invoice dated
23/09/2015 by Ritu Automobiles Limited. The plaintiff sanctioned
-- 5 of 11 --
6
Term Loan under Small Road and Water Transport Operators Scheme
of Rs.6,00,000/ vide sanctioned letter dated 24/09/2015. The
defendant no.2 submitted Receipt for Margin Money dated 30/09/2015
by Ritu Automobiles Limited. The P.w.1 has further deposed that to
secure the repayment of the said Rs.6,00,000/, the defendants
executed concerned documents as on 30/09/2015 in favour of the
plaintiff bank which are mentioned in para no.7 of the plaint. The
plaintiff after considering the concerned documents executed by the
defendants sanctioned Term Loan of Rs.6,00,000/ to the defendant
no.1. The defendant nos. 2 and 3 signed common Guarantee Deed
dated 30/09/2015. The Term Loan account no.0026675100024596 was
opened in the name of the defendant no.1 in the books of account of
the plaintiff and as per letter of authority the plaintiff disbursed the
amount of Rs. 6,00,000/ to defendant no.1. The account of defendant
no.1 was not regular and therefore the plaintiff addressed various
letters to the defendant no.1 with respect to the overdues in Term Loan
Account on 03/12/2015 for the amount of Rs.9,126/, on 30/12/2015
for the amount of Rs.12,417/, on 27/01/2016, for the amount of Rs.
25,712/ and on 29/02/2016 for the amount of Rs.26,025/. The
defendant no.1 failed to regularize the account and therefore, the
plaintiff addressed various letters to the defendant no.1. Therefore, the
plaintiff addressed demand notice to defendant no.1 on 21/11/2016,
for the overdue amount of Rs.50,774/, on 28/11/2016 for the overdue
amount of Rs.45,046/ and on 10/01/2017 for the overdue amount of
Rs. 26,769/. The plaintiff requested the defendant no.1 to regularize
the Loan Account but the defendant no.1 always promised to regularise
the account but failed and neglected to regularise the account.
Ultimately, the account of the defendant no.1 has been classified as
-- 6 of 11 --
7
NPA on 08/11/2016. The defendant nos. 1 to 3 are not ready and
willing to pay legal dues of the plaintiff. The plaintiff addressed Recall
Notice dated 13/02/2017 to defendant no.1 wherein amount of
Rs.5,10,354/ consisting of Rs 4,99,728/ principal and Rs.10,626/
towards interest was demanded with further interest thereon from
09/02/2017. The defendant no.2 as proprietor of defendant no.1 visited
the branch after receipt of Recall Notice and promised to regularise the
account. The plaintiff states that inspite of various promises, the
defendants did not regularise and or clear the account. The plaintiff
addressed a Demand Notice to defendant no.1 dated 20/02/2017 for
the overdue amount of Rs. 27,075/. The P.W.1 has further deposed
that that the amount of Rs.4,90,279/ is due against the defendants as
on 12/04/2018. The defendants failed to repay the due amount to the
plaintiff bank inspite of requests. Therefore, the plaintiff is entitled to
recover total amount of Rs. 4,90,279/ as on 12/04/2018 alongwith
further interest at the rate of 11.25% p.a. Hence, this suit.
11. In support of oral evidence of the PW1, the plaintiff bank
produced documentary evidence under list of document at Exh. 05. The
documents are at Exhibits6 to 43. The plaintiff has relied on Exh.6
Application for Term Loan dated 22/09/2015 by the defendant no.1,
Exh.7 Proforma Invoice dated 23/09/2015, Exh.8 The sanction letter
dated 24/09/2015 by plaintiff addressed to defendant no.1, Exh.9 The
receipt for Rs.85,410 towards Margin Money dated 30/09/2015,
Exh.10 The Demand Promissory Note dated 30/09/2015, Exh.11 The
Demand Promissory Note Delivery Letter dated 30/09/2015, Exh.12
The Declaration dated 30/09/2015, Exh.13 The Letter of Authority
dated 30/09/2015 by Defendant no.1 to the plaintiff, Exh.14 The
-- 7 of 11 --
8
Hypothecation cum Loan Agreement dated 30/09/2015, Exh 15 The
Common Guarantee Deed dated 30/09/2015, Exh.16The Tax Invoice
dated 06/10/2015 bearing No RHB2015696 for Rs.5,84,716.00,
Exh.17The Debit Note dated 06/10/2015 bearing No. DRHB2015696
for Rs.13,695.00, Exh.18The copy of Registration Certificate with
registration No. MH04GD5460 issued by RTO, Mumbai, Exh.19The
copy of Letter dated 03/12/2015 by plaintiff to the defendant no.1 for
the overdue amount of Rs.9126.00, Exh.20The copy of Letter dated
30/12/2015 by plaintiff to the defendant no.1 for the overdue amount
of Rs.12,417.00, Exh.21The copy of Letter dated 27/01/2016 by
plaintiff to the defendant no.1 for the overdue amount of Rs.25,712.00,
Exh.22The copy of Letter dated 29/02/2016 by plaintiff to the
defendant no.1 for the overdue amount of Rs.26,025.00, Exh.23The
copy of Letter dated 19/05/2016 by plaintiff to the defendant no.1 for
the overdue amount of Rs.30,985.00, Exh.24The copy of Letter dated
14/06/2016 by plaintiff to the defendant no.1 for the overdue amount
of Rs.44,308.00, Exh.25The copy of Letter dated 28/07/2016 by
plaintiff to the defendant no.1 for the overdue amount of Rs.9,918.00,
Exh.26The copy of Letter dated 02/09/2016 by plaintiff to the
defendant no.1 for the overdue amount of Rs.22,665.00, Exh.27The
copy of Letter dated 15/09/2016 by plaintiff to the defendant no.1 for
the overdue amount of Rs.32,672.00, Exh.28The Letter dated
17/10/2016 by plaintiff to the defendant no.1 for the overdue amount
of Rs.37,440.00, Exh.29 The Demand Notice dated 21/11/2016 by the
plaintiff to the defendant no.1 for the overdue amount of Rs.50,774.00,
Exh.30The Demand Notice dated 28/11/2016 by the plaintiff to the
defendant no.1 for the overdue amount of Rs.45,046.00, Exh.31The
Demand Notice dated 10/01/2017 by the plaintiff to the defendant no.1
-- 8 of 11 --
9
for the overdue amount of Rs.26,759.00, Exh.32The Recall Notice
dated 13/02/2017 by the plaintiff to the Defendant No. 1, Exh.33 The
Demand Notice dated 20/02/2017 by the plaintiff to the defendant no.1
for the overdue amount of Rs.27,057.00, Exh.34The Notice of
invocation of guarantee dated 07/04/2017 addressed by the plaintiff to
Defendant No.1, Exh.35The Notice of invocation of guarantee dated
07/04/2017 by the plaintiff to Defendant No.3, Exh.36The Demand
Notice dated 25/04/2017 by the plaintiff to the defendant no.1 for the
overdue amount of Rs.27,732.00, Exh.37The Demand Notice dated
22/05/2017 by the plaintiff to the defendant no.1 for the overdue
amount of Rs.28,071.00, Exh.38The Demand Notice dated 12/06/2017
by the plaintiff to the defendant no.1 for the overdue amount of
Rs.41,410.00, Exh.39The Demand Notice dated 12/07/2017 by the
plaintiff to the defendant no.1 for the overdue amount of Rs.41,756.00,
Exh.40The Demand Notice dated 08/09/2017 by the plaintiff to the
defendant no.1 for the overdue amount of Rs.55,477.00, Exh.41The
Demand Notice dated 21/10/2017 by the plaintiff to the defendant no.1
for the overdue amount of Rs.55,842.00, Exh.42The Demand Notice
dated 09/11/2017 by the plaintiff to the defendant no.1 for the overdue
amount of Rs.69,210.00, Exh.43Particulars of Claim with Statement of
Account at Exh.43. It is pertinent to note that the oral as well as
documentary evidence of the plaintiff bank has been gone
unchallenged.
12. From above my discussion, I come to the conclusion that the
plaintiff bank has proved that amount of Rs.4,90,279/ is due against
the defendants. The plaintiff bank has asked further interest at the rate
of 11.25%p.a. from filing of the suit, but at present there is no rate of
-- 9 of 11 --
10
interest at the rate of 11.25% p.a. of any bank. Therefore, the future
rate of interest is 9% p.a. and that is reasonable from date of filing of
the suit till the realization of entire amount. Hence, the plaintiff bank is
entitled to recover amount of Rs.4,90,279/ from the defendants
alongwith further interest at the rate of 9% p.a. Therefore, I have
answered on the point no. 1 is in affirmative and point no. 2 is
accordingly. Hence, I proceed to pass following order:
ORDER
1. The suit of the plaintiff is decreed with costs.
2. The defendant nos. 1 to 3 shall severally and jointly pay total
amount of Rs. 4,90,279/ to the plaintiff bank alongwith further
interest at the rate of 9% p.a. on decreetal amount to the plaintiff
bank from the date of filing of the suit till its realization.
3. Decree be drawn up accordingly.
Dtd: 17/12/2020. Judge,
City Civil & Sessions Court,
Gr.Mumbai.
Dictated on : 17/12/2020
Signed on : 18/12/2020
-- 10 of 11 --
11
“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGEMENT/ORDER”
UPLOAD DATE TIME NAME OF STENOGRAPHER
18/12/2020 4.45p.m. Mrs.V.V.Malgaonkar
Name of the Judge HHJ Shri R.V.Kokare(CR No.31)
Date of Pronouncement of
Judgement/Order.
17/12/2020
Judgement/order signed by P.O on 18/12/2020
Judgement/order uploaded on 18/12/2020
-- 11 of 11 --