Final Order 1

Order Details: Copy of Judgment
Pdf Text: 1 Comm.suit 46.19
Received on : 03/05/2019
Registered on : 04/07/2019
Decided on : 29/01/2020
Duration : Y M D
00 06 25
IN THE COURT BOMBAY CITY CIVIL COURT AT GR.BOMBAY
Commercial Suit No.46 of 2019
Bank of Baroda, a body
Corporate, constituted under the
Banking Companies (Acquisition
and Transfer of Undertakings)
Act V1970, having their head
office at Mandvi, Baroda, Gujrat
State and their branch office at
LBS Road Kurla Branch, 5,
Solanki Apartment, LBS Road,
Kurla (W), Mumbai70 ..Plaintiff
V/s.
1 M/s.S.S. Garments,
(through its proprietor
Mr.Jalindar Nivruti Bhaste
62/502, Motilal Nagar No.1,
Goregaon(W), Mumbai62
2 Mr.Jalindar Nivruti Bhaste
room no.3, Bhosale Chawl no.10,
Shivaji Nagar Vakola Bridge,
Santacruz(E), Mumbai55 ..Defendants
Coram : H.H.THE PRINCIPAL JUDGE
M.W. CHANDWANI
Dated : 29th January,2020
(C.R.No.19)
Advocate Ms.Pooja Mali i/b. Advocate Ms.Purnima Pandit for plaintiff.
Defendants and advocate absent.
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2 Comm.suit 46.19
O R A L J U D G M E N T
The present suit has been filed under Commercial Court
Act,2015 for recovery of amount of Rs.8,09,697/ alongwith future interest
@ 8.60% p.a.
2 The brief facts of the case are as under:
The plaintiff is a body corporate, constituted under the Banking
Companies (Acquisition and Transfer of Undertakings) Act,1970. It carries
business as a banker having head office at Mandvi, Baroda having branch
office at LBS Road, Kurla Branch, Kurla. The defendant no.2 is being sole
proprietor of defendant no.1, applied to the plaintiff for term loan of
Rs.8,00,000/ which was sanctioned by letter dated 12 th July,2016. On
executing the Promissory Note, letter of sole proprietorship, letter of
installment with acceleration clause; letter of authority to make payment
directly to the dealers; composite hypothication agreement; composite
undertakingcumdeclaration and declarationcum undertaking cum
authority all dated 12th July,2016, the defendants disbursed the loan
amount of Rs.8,00,000/ The defendant no.2 also executed general form
of guarantee.
3 Thereafter, the plaintiff requested defendant no.2 to pay
outstanding on the same term loan on various dates, but the defendant
no.2 failed and neglected to pay the outstanding under the term loan.
Notice dated 7th February,2019 through plaintiff's advocate was served
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3 Comm.suit 46.19
calling upon defendant no.2 to make the payment, but the defendants
failed to do so. As per the statement of account maintained by the
plaintiff, sum of Rs.8,09,697/ is due and payable by the defendants to the
plaintiff. The defendants are jointly and severally liable to pay the amount
of Rs.8,09,697/ to the plaintiff.
4 Pursuant to filing of the suit, the writ of summons was served
upon the defendants, but the defendants failed to appear. Therefore, case
against the defendants was proceeded exparte.
5 The plaintiff has examined its witness Mr.Vikaram Tukaram
Gotam, Branch Manager, Bank of Baroda, LBS Kurla (W) at Exh.6. Having
heard the learned advocate for plaintiff, the following points arise for my
determination and I have given my findings against each of them for the
reasons mentioned hereinafter.
POINTS FINDINGS
1) Whether the plaintiff is entitled
to a decree directing the defendants
to pay sum of Rs.8,09,697/ ..In the affirmative
alongwith future interest @
8.60% p.a.?
2) What order? ..As per final order
R E A S O N S
As to point no.1:
6 Evidently, the plaintiff is a body corporate, constituted under
Banking Companies Act and is engaged in the business as a banker and
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4 Comm.suit 46.19
provides loan to its customers. The plaintiff's witness Vikram Tukaram
Gotam, Branch Manager of Bank of Baroda, LBS Road, Kurla has been
examined. It appears from his evidence and documents duly proved that
defendant no.1 is a sole proprietorship firm and defendant no.2 is
proprietor of defendant no.1 had obtained term loan of Rs.8,00,000/ from
the plaintiff's bank. A demand Promissory Note (Exh.9) reveals that the
defendant agreed to repay the amount of Rs. 8,00,000/ on demand. It
also appears from the statement of account (Exh.18) that amount of Rs.
8,00,000/ has been credited in the account of defendant no.1.
7 The evidence of P.W.1 Vikaram Gotam further shows that
inspite of request of plaintiffbank, defendants failed to pay the
outstanding under the said loan and since the defendants failed to pay the
amount, demand notice dated 7th February,2019 (Exh.17) came to be
issued to the defendant. A statement of account at Exh.18 goes to show
that as on 29th August,2018 there is outstanding balance of Rs.7,06,666/
and unapplied interest upto 31st January,2019 is Rs.1,03,031/. Thus, total
amount of Rs.8,09,697/ is shown outstanding towards the defendants.
There is no rebuttal to this evidence.
8 Thus, the above evidence is more than sufficient to hold that
the plaintiffbank has granted loan amount of Rs.8,00,000/ to the
defendants; the defendants failed to pay as per agreement; and as on the
date of filing of the suit, there is outstanding amount of Rs.8,09,697/ from
due to the defendants. Therefore, the plaintiff is entitled to recover the
amount of Rs.8,09,697/ from defendants, jointly and severally.
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9 Needless to say, the loan transaction between plaintiff and
defendants is commercial transaction. Therefore, the future interest is to
be awarded as per the prevailing banking rate of interest on the loan
amount. Although, in evidence plaintiff's witness deposed future interest
@ 9.70% p.a. the plaintiff has claimed 8.60% p.a. interest monthly rest in
suit prayer clause, therefore, the plaintiff is entitled to the interest on
outstanding amount @ 8.50% p.a. interest monthly rest.
10 In view of above, I answer the point accordingly and proceed
to pass the following order:
O R D E R
1) Suit is decreed with costs.
2) The defendants jointly and severally liable to pay
Rs.8,09,697/ to the plaintiff alongwith future interest @
8.60% p.a. with monthly rest from the date of filing of the suit
till the date of payment.
3) Decree be drawn accordingly.
29/01/2020 (M.W. CHANDWANI)
Principal Judge,
Gr.Bombay.
Dictated on : 29/01/2020
Transcribed on : 30/01/2020
Signed by H.H.J. on : 03/02/2020
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CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER
Name of Stenographer: Mrs.Aruna S. Jayade
Upload date and time: 04/02/2020 (11.15 a.m.)
Name of the Judge H.H.THE PRINCIPAL JUDGE
Shri M.W. CHANDWANI(C.R.No.19)
Date of Pronouncement of Order 29th January, 2020
Order signed by P.O. on 3rd February, 2020
Order uploaded on 4th February, 2020
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