Final Order 1

Order Details: Ex-parte Judgement
Pdf Text: 1 Judgment in Commercial Suit No. 71/2019
Lodged on : 02.05.2019
Admitted on : 05.08.2019
Decided on : 24.08.2022
Duration : Y M D
3 3 22
COMMERCIAL SUIT NO. 71 OF 2019
CNR NO : MHCC010049372019
Exh.30
Syndicate Bank, a bank constituted
established and functioning under
the Banking Companies (Acquisition
and Transfer of Undertakings) Act, 1970
Having its head office at Manipal
Karnataka State and amongst other,
Having branch office at padam
building no. 1, 4/B, Pedder Road,
Mumbai – 400 026
Through its Branch Manager
Mr. Ashok Mahadeo Salvi ...Plaintiff
Versus
1. Kinza Tours & Travels
Through its proprietor
Tajmohammad Hamid Shaikh
Age : 45 years, Occ – Business,
Room No. 35 3/9F, V.P. Nagar Colony,
Nehru Center, Lala Lajpatrai Road,
Worli, Mumbai – 400 018.
2. Tajmohammad Hamid Shaikh
Age : 45 years, Occ – Business
Room No. 35 3/9F, V.P. Nagar Colony,
Nehru Center, Lala Lajpatrai Road,
Worli, Mumbai – 400 018. ...Defendants
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2 Judgment in Commercial Suit No. 71/2019
Appearance:
Adv. Mr. Mahesh Chandanshiv for Plaintiff.
Defendants exparte.
CORAM : SHRI. A.S.SALGAR
ADHOC JUDGE,
(C.R.NO.31)
DATED : 24th AUGUST 2022
J U D G M E N T
(Delivered on : 24.08.2022)
The plaintiff bank has filed the present suit for recovery of
the amount of Rs.4,33,674.59ps. along with interest at the rate of 20%
per annum from the defendants.
The brief facts of the plaintiff's case is as under:
2. The plaintiff is a nationalized bank, a body corporate
constituted, established and functioning under the Banking Companies
(Acquisition and Transfer of Undertakings), Act 1970. The defendant
no. 1 is proprietary concern carrying on its business of Tours and
Travels through its proprietor i.e. the defendant no. 2. The defendant
no. 2 on behalf of defendant no. 1 had approached the plaintiff for
availing credit facility/loan by way of vehicle loan upto the extent of
Rs.5,79,000/ for the purchase of Tours and Travels business. The
defendants had applied through application for advance on 08.10.2015
for availing the vehicle loan with the plaintiff's branch office situated at
Pedder Road, Mumbai. Pursuant to the defendants' application, on
26.11.2015, the plaintiff after complying all the terms and conditions of
the loan facility, sanctioned said vehicle loan of Rs.5,79,000/ against
the Hypothecation and charge upon the said vehicle. The plaintiff
submits that the said loan was sanctioned and the same was to be
repaid in 48 installments along with interest at the rate of 10.95% with
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EMI each of Rs.15,087/. The last installment is due and payable on or
before 31.10.2019. After the sanction of the said loan, the said loan
amount was remitted to the account of Vitesse Pvt. Ltd. The plaintiff
further submitted that it sanctioned the said loan on the condition that,
the defendants have to execute the Composite Hypothecation
Agreement dated 26.11.2015 in the plaintiff's favour thereby
hypothecating the above vehicle. After availing the said loan, the
defendants purchased Marutu Suzuki Desire LDI Car having engine no.
5190509, bearing registration no. MH01BT7850 for Tours and Travel
Business. The said vehicle is registered with regional transport office
and permit was also issued in the name of the defendants. The
defendants have agreed to repay the loan facility availed by them for
the contractual period together with interest. In pursuance of said
sanction from the plaintiff, the defendants have availed the said vehicle
loan to the extent of Rs. 5,79,000/ for the purchase of a car for Tours
and Travels business. After execution of all the loan documents, the
defendants have further executed confirmation of delivery of
Machinery/Vehicles dated 26.11.2015 and further executed by the
Dealer of Vehicle. The plaintiff further submitted that the Dealer i.e.
Vitesse Pvt. Ltd. issued Proforma Invoice dated 08.10.2015 in favour of
the defendants. The said car dealer has further issued receipt
acknowledging the receipt of loan amount. The loan has been disbursed
on 26.11.2015 to the Car Dealers Account.
3. The plaintiff further submitted that initially the defendants
were regular in repayment of said loan. Thereafter, inspite of repeated
requests and demands, the defendants have failed and neglected to
repay the loan installments regularly, which resulted into classification
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of loan account as NPA with effect from 02.05.2017. The plaintiff
requested its authorized person to seize the said vehicle vide its letter
dated 16.10.2017. The plaintiff seized the said vehicle and put to
auction on 19.04.2018. The said vehicle was sold in auction at price of
Rs.1,80,000/, which is part of the outstanding loan amount. According
to the plaintiff, the total amount of Rs.4,33,674.59ps. is outstanding
from the defendants. Inspite of repeated requests and demands, the
defendants failed to repay the amount. Hence, the plaintiff by its
Advocate's legal notice dated 18.09.2018 called upon the defendants to
repay the loan amount. The said notice was sent through registered
post. The legal notice sent to the defendant nos. 1 and 2 has been duly
received and acknowledged by them. The plaintiff submits that it has
filed Mediation Application on 04.02.2019 before District Legal Services
Authority, Mumbai for preinstitution mediation of the dispute between
the parties. The said authority have issued notices to the defendants for
the settlement of the dispute by way of mediation. However, the
defendants failed to appear before the mediation meeting. Hence, the
authority after hearing the plaintiff has pleased to issue nonstarter
report dated 14.04.2019 to the plaintiff. Hence, the plaintiff has filed
the present suit for the recovery of the amount of Rs.4,33,674.59ps.
with further rate of interest at the rate of 20% per annum.
4. The suit summons was duly served on the defendants. But
the defendants failed to appear before the Court. Hence, in view of
order dated 04.02.2020, the suit is proceeded exparte against the
defendants.
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5. In support of the claim, the plaintiff bank examined its
authorized representative and senior branch Manager namely
Mr.Kumar Kumud Ranjan at Exh.11. The plaintiff also filed the
documents at Exh. 13 to 28. The evidence closure pursis of the plaintiff
is at Exh.29.
6. After considering the pleadings of the plaintiff and evidence
on record, following points arise for my determination and I have
recorded my finding against each of them with the reasons to follows:
POINTS FINDING
1) Whether plaintiff proves that an
amount of Rs.4,33,674.59ps. is due
from the defendants?
In the affirmative.
2) Whether plaintiff is entitled to
recover an amount of
Rs.4,33,674.59ps. from the
defendants? If yes, at what rate of
interest ?
In the affirmative.
At the rate of Rs.12% per annum.
3) What order and decree? Suit is decreed with costs.
R E A S O N S
7. Heard Learned Advocate Mr. Mahesh Chandanshiv for the
plaintiff.
8. As per the submission of the plaintiff, the loan was
obtained by the defendant on 26.11.2015. The loan account has been
treated as Non Performing Asset from 02.05.2017. On 19.04.2018 the
plaintiff sold vehicle in auction of Rs.1,80,000/. It means part payment
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was made by defendants. Therefore, as per Section 19 of Limitation Act,
“Where payment on account of a debt or of interest on a legacy is
made before the expiration of the prescribed period by the person
liable to pay the debt or legacy or by his agent duly authorized in
this behalf, a fresh period of limitation shall be computed from the
time when the payment was made." The suit was filed by the plaintiff
on 02.05.2019. If the said period is calculated, it is found that the suit is
filed within three years from the date of last payment. Hence, the suit is
within limitation.
As to point nos. 1 & 2
9. Both these points are interconnected with each other.
Hence, for avoiding repetition of evidence, I discuss both these points
simultaneously. According to the plaintiff, on the request of the
defendants, the plaintiff bank sanctioned loan of Rs.5,79,000/ to the
defendants for purchasing Maruti Suzuki Desire LDI Car. The
defendants executed various documents in favour of the plaintiff bank
and thereby agreed to repay the loan amount with interest. However,
the defendants failed to repay the loan amount. The plaintiff bank
seized the said vehicle and the said vehicle was sold in auction at price
of Rs.1,80,000/, which is part of the outstanding loan amount.
Therefore, according to the plaintiff, an amount of Rs.4,33,674.59ps. is
outstanding from the defendants. In support of the pleading, the
plaintiff bank examined its branch Manager namely Mr. Kumar Kumud
Ranjan at Exh.11. He deposed in support of the suit claim. The oral
evidence of the plaintiff bank manager is in consonance with the
averment made in the plaint. The aforesaid oral evidence of the plaintiff
is not challenged by the defendants. The defendants failed to conduct
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the cross examination of the plaintiff. Therefore, the evidence of the
plaintiff cannot be disbelieved.
10. The oral evidence of the plaintiff is supported by
documentary evidence at Exh.13 to 28. Loan application dated
08.10.2015 at Exh.14 shows that the defendants have applied to the
plaintiff bank for loan amount of Rs. 5,79,000/. Letter of Sanction at
Exh.15 shows that the plaintiff bank has sanctioned loan of Rs.
5,79,000/ to the defendants with rate of interest of 10.95% per annum.
Accordingly, the defendants have executed Hypothecation Agreement at
Exh.16 and letter of confirmation of delivery of vehicle at Exh.17 in
favour of the plaintiff bank. All these documents along with oral
evidence of P.W.1 proved that the defendants obtained loan of
Rs.5,79,000/ from the plaintiff bank along with interest at the rate of
10.95% per annum. The statement of account at Exh.24 shows that on
31.03.2019, an amount of Rs.4,33,674.59 ps. is due and payable from
the defendants. The particulars of the claim is also filed. The defendants
have failed to pay the outstanding amount to the plaintiff.
11. The oral and documentary evidence tendered by the
plaintiff was not challenged by the defendants. Therefore, I have no
reason to disbelieve the version of the plaintiff. In short, the plaintiff by
leading oral and documentary evidence sufficiently established that the
amount of Rs.4,33,674.59ps. is outstanding from the defendants.
Hence, the plaintiff is entitled to recover the said amount from the
defendants.
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12. So far as interest rate is concerned, the plaintiffs have
claimed interest at the rate of 20% per annum. Said interest is
exorbitant and the Court can exercise discretion while granting further
interest. Interest at the rate of 12% per annum would be just and proper
considering commercial nature of transaction. Costs of the suit is liable
to be imposed on the defendants. In the light of above discussion, I
record my finding as to points nos. 1 in the affirmative and point no. 2
accordingly. Hence, I pass the following order:
ORDER
1) Commercial Suit No. 71 of 2019 is decreed with costs.
2) The defendants are directed to pay to the plaintiff
jointly and severally an amount of Rs.4,33,674.59ps.
(Rs. Four Lakh Thirty Three Thousand Six Hundred
Seventy Four and Fifty Nine Paise only) along with
future interest at the rate of 12% per annum from the
date of filing of the suit till realization within 3 months
from the date of this order.
3) The defendants shall bear the cost of the suit.
4) Court fee, if any, be refunded to the plaintiff as per rule.
5) Decree be drawn up accordingly.
(Judgment pronounced in the open Court)
Dated : 24.08.2022 (A.S. Salgar)
Adhoc Judge,
City Civil Court
Gr. Mumbai.
Dictated on : 24.08.2022
Typed on : 24.08.2022
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CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER”
UPLOAD DATE TIME NAME OF STENOGRAPHER
25.08.2022 5.10 p.m. Prachi Y. Potdar
Stenographer – Grade I
Name of the Judge HHJ Shri. A.S. Salgar
(C.R.NO. 31)
Date of Pronouncement of
Judgment/Order.
24.08.2022
Judgment/order signed by P.O on 24.08.2022
Judgment/order uploaded on 25.08.2022
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