Final Order 2

Order Details: Ex-parte Judgement
Pdf Text: 1 Judgment in Commercial Suit No. 58/2019
Lodged on : 04.05.2019
Admitted on : 19.07.2019
Decided on : 29.07.2022
Duration : Y M D
3 2 25
COMMERCIAL SUIT NO. 58 OF 2019
CNR NO. : MHCC010049612019
Exh.15
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,
2nd floor, Tardeo Road, Mumbai – 400 034
Rahul Prakash Modak through its branch Manager … Deleted
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 811 A, 2 nd floor, Tardeo Road,
Mumbai – 400 034. … Plaintiff
Versus
1. M/s. Amayra Tours and Travels, carrying
on business at 401, 4th floor, 141618, Islamiya
Manzil, Badul Rangari Street, Mumbai – 400 008.
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2 Judgment in Commercial Suit No. 58/2019
2. Shri. Faizan Vasiullah Khan, Prop. of Amayra
Tours and Travels, Age not known,
Indian Inhabitant of Mumbai carrying on
business at 401, 4th floor, 141618, Islamiya
Manzil, Badul Rangari Street, Mumbai – 400 008. ...Defendants
Appearance:
Adv. Karuna Adangale for Plaintiff.
Defendants exparte.
CORAM : SHRI. A.S.SALGAR
ADHOC JUDGE,
(C.R.NO.31)
DATED : 29th JULY 2022
J U D G M E N T
(Delivered on : 29.07.2022)
The plaintiff bank has filed the present suit for recovery of
the amount of Rs.4,08,129.52ps. from the defendants.
The brief facts of the plaintiff's case is as under:
2. The plaintiff is a body corporate constituted under the
Banking Companies (Acquisition and Transfer of Undertaking), Act
1970. The defendant no. 1 is a proprietorship firm of which the
defendant no. 2 is a sole proprietor. On the request of the defendants,
the plaintiff bank has granted and sanctioned vehicle loan for the
purchase of vehicle i.e. Tpermit Wagonor LXF CNG for Rs. 4,88,000/.
Pursuant to the request of the defendants, the plaintiff bank in the year
2016 sanctioned vehicle loan to the defendants on 21.10.2016. The
defendants have executed various documents such as Demand
Promissory Note, Agreement of Hypothecation and General letter of
Lien and Setoff for borrowing arrangements from the borrower's in
favour of the plaintiff bank for obtaining loan. The plaintiff by their
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Advocate's letter dated 16.03.2019 called upon the defendants to
comply the said letter. However, the defendants failed and neglected to
comply the said letter nor even replied the said letter. The defendants
also failed to submit the stock statements to the plaintiffs as per terms
of Hypothecated Agreement. The defendants committed breach of the
various terms and conditions of security documents executed by them in
favour of the plaintiffs. Inspite of repeated request made by the plaintiff,
the defendants failed to undo the said breaches and irregularities and
also failed to regularize the credit facilities.
3. The plaintiff submitted that there is now due and payable
by the defendants jointly and severally to the plaintiff a sum of
Rs. 4,08,129.52ps with further interest at the rate of 10.15% per annum
in respect of A/c No. 7754023794 under the said vehicle loan as per
particulars of claim and statement of account.
4. The plaintiff submits that the repayment of the amount is
duly secured by a valid and subsisting hypothecation of the security and
other movable property. The plaintiff submits that the said
hypothecated securities be sold by and under the orders and directions
of this Hon'ble Court and the set sale proceeds thereof be paid over to
the plaintiff towards their claim. The plaintiff apprehended that the
defendants with a view to deprive the plaintiff of the suit securities may
dispose off and/or create a third party rights in or over the suit
securities. The plaintiff submits that the suit securities are in a great
jeopardy. According to the plaintiff, the total amount of
Rs.4,08,129.52ps is outstanding from the defendants. Therefore, the
plaintiff has prayed for decree against the defendants for recovery of the
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4 Judgment in Commercial Suit No. 58/2019
said amount with further rate of interest at the rate of 10.15% per
annum.
5. In view of order dated 23.02.2022, the suit is proceeded ex
parte against the defendants.
6. In support of the claim, the plaintiff bank examined its
branch Manager namely Thakur Manish Singh at Exh.4. The plaintiff
also filed the documents at Exh.6 to 13. The evidence closure pursis of
the plaintiff is at Exh.14.
7. 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.4,08,129.52ps is due
from the defendants?
In the affirmative.
2) Whether plaintiff is entitled to
recover an amount of
Rs.4,08,129.52ps from the
defendants? If yes, at what rate of
interest ?
In the affirmative.
At the rate of Rs.11% per annum.
3) What order and decree? Suit is decreed with costs.
R E A S O N S
8. Heard Learned Advocate Karuna Adangale for the plaintiff.
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9. As per the submission of the plaintiff, the loan was
obtained by the defendants on 21.10.2016. The transaction took place
between the parties on 25.10.2016. The suit was filed by the plaintiff on
04.05.2019. If the said period is calculated, it is found that the suit is
filed within three years from the date of transaction. Hence, the suit is
within limitation.
As to point nos. 1 & 2
10. 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.4,88,000/ to the
defendants for purchasing vehicle i.e. Tpermit Wagonor LXF CNG. 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. According to the
plaintiff, an amount of Rs.4,08,129.52ps is outstanding from the
defendants. In support of the pleading, the plaintiff bank examined its
branch Manager namely Thakur Manish Singh at Exh.4. He deposed in
support of the suit claim. The oral evidence of the plaintiff bank
Manager is in consonance with the averments made in the plaint. The
aforesaid oral evidence of the plaintiff is not challenged by the
defendants. The defendants failed to conduct the cross examination of
the plaintiff. Therefore, the evidence of the plaintiff cannot be
disbelieved.
11. The oral evidence of the plaintiff is supported by
documentary evidence at Exh.6 to 13. Sanction letter at Exh.6 shows
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that the plaintiff bank sanctioned loan amount of Rs.4,88,000/ to the
defendants for purchasing vehicle with rate of interest of 11% per
annum. Accordingly, the defendants have executed Demand Promissory
Note at Exhibit 8 whereby the defendants promised to pay to the
plaintiff the sum of Rs. 4,88,000/ with interest thereon as set out
therein. The Hypothecation Agreement is at Exh.8 and Letter of General
Lien and setoff for borrowing arrangements from the borrowers dated
25.10.2016 in favour of the plaintiff bank is at Exh.9. All these
documents along with oral evidence of P.W.1 proved that the
defendants obtained loan of Rs.4,88,000/ from the plaintiff bank along
with interest at the rate of 11% per annum. The statement of account at
Exh.11 shows that an amount of Rs.4,08,129.52ps. is due and payable
from the defendants. The defendants have failed to pay the outstanding
amount to the plaintiff. As per the terms of contract, the plaintiff is
entitled to charge interest at the rate of 11% per annum. Hence, the
plaintiff bank is entitled to recover an amount of Rs.4,08,129.52ps
along with future interest at the rate of 11% per annum from the date
of filing of the suit till realization. Accordingly, I answer point nos. 1 &
2 in the Affirmative. In view of my finding as to point nos. 1 & 2, I
answer point no. 3 accordingly and pass the following order :
ORDER
1) Commercial Suit No. 58 of 2019 is decreed with costs.
2) The defendants jointly and severally shall pay to the
plaintiff bank an amount of Rs.4,08,129.52ps (Rs. Four
Lakh Eight Thousand One Hundred Twenty Nine and
Fifty Two Paise only) along with future interest at the
rate of 11% per annum from the date of filing of the
suit till realization.
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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 : 29.07.2022 (A.S. Salgar)
Adhoc Judge,
City Civil Court
Gr. Mumbai.
Dictated on : 29.07.2022
Typed on : 01.08.2022
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CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER”
UPLOAD DATE TIME NAME OF STENOGRAPHER
01.08.2022 4.00 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.
29.07.2022
Judgment/order signed by P.O on 01.08.2022
Judgment/order uploaded on 01.08.2022
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