Final Order 1

Order Details: Ex-parte Judgement
Pdf Text: 1
MHCC010049562019
Presented on : 04052019
Registered on : 19072019
Decided on : 17022021
Duration : Y01 M09 D13
IN THE COURT OF SESSIONS FOR GREATER BOMBAY
COMMERCIAL SUIT NO. 59 OF 2019
Dena Bank, a body corporate constituted ]
Under the Banking Companies (Acquisition ]
& Transfer of Undertakings) Act, 1970, having ]
its Corporate Office at Dena Corporate Center, ]
C10, GBlock, Bandra (E)Mumbai 400 051 ]
and its Branch office amongst at Tardeo Branch, ]
Everest 811A, 2 nd Floor, Tardeo Road ]
Mumbai400 034 Rahul Prakash Modak through its ]
Branch Manager, Age38 ]
RIDER
Bank of Baroda, a body corporate ]
constituted Under the Banking Companies(Acquisition ]
& Transfer of Undertakings Act, 1970, having its Head ]
Office at Baroda Bhavan, R C Dutt Road, Alkapuri, ]
Baroda 390007, (Gujarat) and corporate Office at ]
Baroda Corporate Center, GBlock, Bandra Kurla ]
Complex, Bandra (E), Mumbai 400 051, and its ]
Branch office amongst at Tardeo Branch, ]
Everest 811A, 2 nd Floor, Tardeo Road, ]
Mumbai400 034 ]….Plaintiffs
V/s
1. M/s. Shri Sai Chhaya Tours and Travels, ]
carrying on business at B/1, Vithal Vinayak ]
Sadam, Opp. Swan Mill, T.J.Road, ]
Sewree, Mumbai 400 015. ]
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2. Shri Pravin P. Rane, Prop. of M/s Shri Sai Chhaya ]
and Travels, Age not known, Indian Inhabitant of ]
Mumbai carrying on business at B/1, Vithal Vinayak ]
Sadan, Opp. Swan Mill, T.J. Road, Sewree, ]
Mumbai400 015 ]....Defendants
APPEARANCE:
Ld. Adv. Mr. Sanjay Upadhyay for plaintiff.
None for defendants.
CORAM : HIS HONOUR ADDL.SESSIONS
JUDGE SHRI. SANJAY N. YADAV
(C.R.No.32).
DATED : 17th February, 2021.
Claim : Suit for recovery of Money.
EXPARTE JUDGMENT
(Dictated in Open Court)
The plaintiff by this suit seeks judgment and decree
directing the defendants to pay to the plaintiff a sum of Rs.
4,26,901.33/ (Rupees Four Lakhs Twenty Six Thousand Nine Hundred
One and Thirty Three Paise Only) with further interest at the rate of
10.30% monthly rests from the date of payment till its realization.
2. The facts giving rise to the suit in short can be stated as
follows:
It is the case of the plaintiff that pursuant to the request
made by the defendants, the plaintiff sanctioned the loan of vehicle in
the name of defendant No. 1 vide letter dated 09.12.2016 for Rs.
6,69,000/. The defendants had executed the following documents in
favour of plaintiff.
a) Demand Promissory Note dated 19.12.2016
b) Agreement of Hypothecation dated 19.12.2016
c) General Letter of Lien and Setoff from borrowing
arrangements from the borrower’s dated 19.12.2016
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The plaintiff vide letter dated 19.03.2019 called upon the
defendants to comply the letter. The letter is not replied nor complied
by the defendants. The defendants had breached various terms and
conditions of security documents executed by them. Inspite of request,
the defendants failed to undo the breaches and irregularities. The
defendants now are jointly and severally liable to pay an amount of Rs.
4,26,901.33/. It is the case of the plaintiff that repayment is secured
by subsisting hypothecation of the security and other movable property.
It is the apprehension of the plaintiff that defendants may dispose off
property and create third party interest. The plaintiff, therefore, had
filed the present suit.
3. The defendants have failed to file the written statement.
The suit is proceeded without written statement against defendants.
4. The following points arise for my determination with my
findings thereon and the reasons to follow :
SR.
NO. POINTS FINDINGS
1 Whether the plaintiff is entitled for
recovery of a sum of Rs. 4,26,901.33/
(Rupees Four Lakhs Twenty Six
Thousand Nine Hundred One and Thirty
Three Paise Only) with further interest
at the rate of 10.30% monthly rests from
the date of payment till its realization?
'In Affirmative'
2 What order and decree? As per final order below.
REASONS
AS TO POINT NO. 1:
5. Heard learned Advocate Mr. Sanjay Upadhyay for the
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plaintiff.
6. The plaintiff in support of its case had examined Manish
Singh Thakur at Exh. 05. The plaintiff had relied upon following
documents (Exh.06):
Sr.
No.
Particulars Exh.
1 Copy of Sanction Letter dtd. 09.12.2016 8
2 Original Demand Promissory Note dated 19.12.2016
fro Rs. 6,69,000/
9
3 Original Agreement of Hypothecation (to secure motor
trucks and other transport vehicles with spares
accessories, tools etc) dtd. 19.12.2016
10
4 Original Letter of General lien and setoff for
borrowing arrangements from the borrowers dtd.
19.12.2016
11
5 Copy of plaintiff’s Advocate’s letter dtd. 19.03.2019 22
6 Statement of Accounts 12
7 Banker’s Certificate 13
7. The evidence of plaintiff vide Exh. 5, show that sanction
letter dated 09.12.2016 (Exh.8) was issued in favour of the defendants.
The plaintiff accordingly had executed the demand promissory note
(Exh.9) dated 19.12.2016. The plaintiff had filed the agreement of
hypothecation (Exh.10), General lien and set off for borrowing
arrangements from the borrowers (Exh.11) dated 19.12.2016. The
defendants were expected to repay the amount. The defendants had
failed to make payment. Therefore, the plaintiff, had issued letter dated
19.03.2019 (Exh.22).
8. Inspite of the notice, the amount is not repaid by the
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defendants. It is the evidence of plaintiff that defendants had failed to
submit the stock statements to the plaintiff as per the Hypothecated
Agreement. The defendant was bound to do banking exclusively with
the plaintiff and route all transactions through the account of the
plaintiff. The plaintiff had breached various terms and conditions of
security documents executed by them in favour of the plaintiff. It is
stated that defendants are jointly and severally liable to pay the
plaintiff, a sum of Rs. 4,26,901.33/ in respect of account No.
7754023813 under the Vehicle Loan as per the particulars of the claim
with further interest thereon at the rate of 10.30% with monthly rests
from the date of suit till its realization. The evidence of the plaintiff
have gone unchallenged. The defendantd had appeared in the suit had
not filed the written statement. The defendants have refrained from
contesting the suit. Going by the evidence of the plaintiff, it is clear that
defendants had breached the undertaking executed in favour of the
plaintiff.
The plaintiff is entitled for recovery of a sum of Rs.
4,26,901.33/ (Rupees Four Lakhs Twenty Six Thousand Nine Hundred
One and Thirty Three Paise Only) with further interest at the rate of
10.30% monthly rests from the date of payment till its realization.
Hence, I answered point No. 1 is “in Affirmative.”
In the result, following order is passed.
ORDER
1. Suit is decreed with costs.
2. The Defendants are directed to pay to the plaintiff a sum of Rs.
4,26,901.33/(Rupees Four Lakhs Twenty Six Thousand Nine
Hundred One and Thirty Three Paise Only) with further interest at
the rate of 10.30% with monthly rests from the date of suit till its
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realization.
3. Decree be drawn up accordingly.
(SANJAY N. YADAV)
Additional Sessions Judge
Date: 17.02.2021 Gr.Bombay at Mumbai.
Dictated on : 17.02.2021
Transcribed on : 20.02.2021
Signed by H.H.J.on :23.02.2021
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“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER”
24.02.2021 at 12.05 p.m.
UPLOAD DATE AND TIME
(Mrs. K.S.Bhosale)
NAME OF STENOGRAPHER
Name of the Judge HHJ SHRI S.N.Yadav
(COURT ROOM NO.32)
Date of pronouncement of
judgment/order
17.02.2021
Judgment/order signed by P.O. on 23.02.2021
Judgment/order uploaded on 24.02.2021
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