Final Order 1

Order Details: Ex-parte Judgement
Pdf Text: 1 Comm. Suit No.34/2019
MHCC010049022019 Presented on : 02/05/2019
Registered on : 21/06/2019
Decided on : 26/09/2022
Duration : 03Y/03M/05D
IN THE CITY CIVIL COURT AT MUMBAI.
COMMERCIAL SUIT No.34 of 2019
Canara Bank, a body constituted, Established
and functioning under The Banking Companies
(Acquisition and Transfer of Undertakings) Act,
1970, having its Head Office at 112 J. C. Road,
Bangalore560 002, Karnataka State and
amongst other, having branch office at Padam
Building No.1,4/B, Pedder Road, Mumbai
400026
Through its Branch Manager Mr.Ashok
Mahadeo Salvi
Age:56 years, Occ:Service.
...PLAINTIFF
VERSUS
1 M/s. Kalpana Tours and Travels
Through its Proprietor Mr.Prathamesh
Malvankar
Age:23 year, Occ:
R/2 Santosh Engg Works, Opp Lady Ratan
Tower, Dainik Shivner Marg, Worli,
Mumbai400 018
2 Mr. Prathamesh Malvankar
Age:23 year, Occ:
R/2 Santosh Engg Works, Opp Lady Ratan
Tower, Dainik Shivner Marg, Worli,
Mumbai400 018
..DEFENDANTS
Shri Mahesh Chandanshive, learned Advocate for plaintiff.
Defendants exparte.
CORAM : HIS HONOUR JUDGE SHRI. N.P. TRIBHUWAN
(C.R.NO.32)
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2 Comm. Suit No.34/2019
E XP A R T E J U D G M E N T
(Delivered on 26/09/2022)
This is a suit for recovery of sum of Rs.4,53,034.85/
together with interest @ 20% p.a. with monthly rests from the date of
suit till realization of amount.
2. It is case of plaintiff that it is a body corporate constituted
under the Banking Companies (Acquisition and Transfer of
Undertakings) Act, 1970. Defendant No.1 is proprietary concerned
carrying on business of Tours and Travels. Defendant No.2 is its
proprietor. On 06/102015 defendants approached to plaintiff bank for
vehicle loan to the extent of Rs.5,00,000/. On 25/10/2015, the
plaintiff after complying all terms and conditions of the loan facility
sanctioned vehicle loan of Rs.5,00,000/ to defendants against the
hypothecation and charge upon the said vehicle. Plaintiff has sanctioned
the said loan on condition that defendants shall repay the said loan in
48 equal installment of Rs.13,171/ each with interest @ 10.95%. The
last installment is due and payable on or before 31/09/2019.
Defendants had executed hypothecation agreement on 21/10/2015 in
favor of the plaintiff bank. Defendants have purchased Maruti Suzuki
Wagon R car for Tours and Travels business from the said loan amount.
Defendants were initially regular in repayment of said loan amount but
later on they deliberately avoided to pay the loan installments. Hence,
plaintiff has issued demand notice to defendants on 02/05/2017 and
also informed them the said loan account become NonPerforming Asset
(NPA).
3. Plaintiff has seized the said vehicle on 28/05/2018 and
sold in auction at price of Rs.1,50,000/ which is part of the outstanding
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3 Comm. Suit No.34/2019
loan amount. Defendants failed to repay outstanding loan amount of
Rs.4,53,034/. Plaintiff many time asked defendants to pay the said
amount but they neglected to pay the same. Hence, on 21/09/2018
plaintiff has sent them legal notice for repayment of said loan amount,
but they failed to do so.
4. Plaintiff has exhausted remedy of preinstitution mediation
under Section 12A of the Commercial Courts Act, but matter could not
settle in preinstitution mediation. Therefore, plaintiff has filed this suit
for recovery of the said amount alongwith interest.
5. Defendants served with suit summons but they did not
appear. Hence, suit proceeded exparte against them as per order
dtd.03/08/2022.
6. On above facts following points arise for determination and
this court and recorded findings thereon for the reasons stated as under.
POINTS FINDINGS
1. Whether the plaintiff proved that it has
advanced vehicle loan of Rs.5,00,000/ to
defendants ?
…Yes
2. Whether the plaintiff proved that it is
entitled for recovery of sum of
Rs.4,53,034/ together with interest @
20% p.a. from the date of suit till
realization of suit ?
…Yes
3. What order and decree? ...As per final
order.
REASONS
AS TO POINT Nos.1 AND 2:
7. Heard learned counsel of Plaintiff. Plaintiff has examined
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4 Comm. Suit No.34/2019
its branch Manager (PW1 Kumar Kumud Ranjan) to prove its case. He
reproduced all content of plaint in his chiefexamination. His evidence
is supported by documentary evidence : Loan application
dtd.06/10/2015, Sanction letter dtd.21/10/2015, Hypothecation
agreement dtd.21/10/2015, Confirmation of delivery of vehicle
dtd.21/10/2015 alongwith Tax invoice and receipt dtd.18/10/2015,
Vehicle registration certificate, Valuation report, notice dtd.
16/05/2018, 24/09/2018, 08/10/2018 alongwith postal receipt and
acknowledgment card, statement of account, certificate u/s. 2A(a),
2A(b), 2A(c) of the Banker’s Book Evidence Act, certificate of notional
interest of NPA account (Exh.13 to 26 respectively).
8. In view of evidence of PW1 Branch Manager of plaintiff
Bank and documentary evidence, it becomes clear that on the request of
defendants on 21/10/2015 plaintiff has sanctioned them term / vehicle
loan of Rs.5,00,000/ for purchasing vehicle for commercial purpose. At
the time of sanctioning the said loan defendants have executed
Hypothecation agreement and above documents in favour of plaintiff.
Defendants agreed to repay loan in 48 equal monthly installments with
interest. Statement of account shows that amount of Rs.2,36,865.32
towards installment arrears + Rs.16,452.97 towards penalty arrears +
other arrears Rs.11,912/ =Rs.2,65,230.29 as on 30/11/2018. As far as
rate of interest is concerned, evidence of PW1 and the documents
indicate that defendants are liable to pay the outstanding loan amount
with the floating interest @ 20% p.a. from the date of suit till
realization of the amount.
9. Evidence of PW1 remained unchallenged. His evidence is
supported by documentary evidence mentioned in para supra. There is
no reason to disbelieve his testimony. Hence, plaintiff succeed to prove
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5 Comm. Suit No.34/2019
that it has advanced above mentioned vehicle loan to defendants with
conditions. The amount of Rs.4,53,034/ is due and payable by
defendants to plaintiff with interest @ 20% p.a. Therefore, plaintiff is
entitled for the recovery of the same. Hence, I answered point Nos.1
and 2 as above. Hence, I pass the following order.
ORDER
1. Suit is decreed with costs.
2. The defendant Nos.1 and 2 are jointly and severally
directed to pay to plaintiff the amount of Rs.4,53,034/.
3. The defendant Nos.1 and 2 are jointly and severally
directed to pay to plaintiff the interest @ 20% p.a. on
principal sum of Rs.2,36,865/ from the date of suit till
realization of the said amount.
4. Decree be drawn up accordingly.
Date : 26/09/2022.
(N.P. Tribhuwan)
Judge, City Civil Court,
Mumbai. C.R.No.32
Dictated on : 26/09/2022.
Checked on : 26/09/2022.
Signed on : 26/09/2022.
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6 Comm. Suit No.34/2019
CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER”
27/09/2022 at 12.10 p.m. (Mrs. K.S.Bhosale)
UPLOAD DATE AND TIME NAME OF STENOGRAPHER
Name of the Judge(with CR
No.)
HHJ SHRI. N. P. TRIBHUVAN
(C.R.No.32)
Date of pronouncement of Order 26/09/2022.
Order signed by P.O. on 26/09/2022.
Order uploaded on 27/09/2022
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