Final Order 1

Order Details: Ex-parte Judgement
Pdf Text: Comm.Suit No. 31/19. 1 Ex-parte Judgment (Exh.30).
MHCC010055262019
Presented on : 03-06-2019
Registered on : 18-06-2019
Decided on : 25-03-2022
Duration : 2 years, 9 months, 22 days
IN THE BOMBAY CITY CIVIL COURT AT BOMBAY.
COMMERCIAL SUIT NO. 31 OF 2019
Exh.30.
(Dena Bank, a body corporate constituted under )
the Banking Companies (Acquisition & transfer )
of Undertaking) Act, 1970 having its Head Office ) (Substituted as per
at Plot No. C – 10, G Block, Bandra Kurla ) order in draft C/S
Complex, Bandra (E), Mumbai 400 051 & ) dated 05/10/2019)
a branch amongst other places at 181 Nagdevi )
Street, Mumbai 400 003) )
Bank of Baroda, a body corporate constituted )
under the Banking Companies (Acquisition & )
transfer of Undertaking) Act, 1970 having its )
Head Office at Madavi, Baroda, and having one )
of its branches amongst other places at 181 )
Nagdevi Street, Mumbai 400 003 )...Plaintiff
Versus
1. Mr. Rishikesh D. Pandey, Adult, Male, )
Indian Inhabitant, )
Having address at R. No. 2, Alluddin Ismail )
Chawl, House No. 13, Jambli Pada, )
Behind Kalina Village, Santacruz (E), )
Mumbai 400 029 Maharashtra )
2. M/s Sai Tours & Travels, proprietary firm, )
Proprietor Mr. Rishikesh D. Pandey, Adult, )
Male, Indian Inhabitant, )
Having address at R. No. 2, Alluddin Ismail )
Chawl, House No. 13, Jambli Pada, )
-- 1 of 6 --
Comm.Suit No. 31/19. 2 Ex-parte Judgment (Exh.30).
Behind Kalina Village, Santacruz (E), )
Mumbai 400 029 Maharashtra )...Defendants
SUIT FOR RECOVERY OF MONEY
CORAM : HIS HONOUR JUDGE SHRI R.R.BHAGWAT.
(COURT ROOM NO.31).
DATE : 25th MARCH, 2022.
Smt. A.W.Barve, Advocate for the plaintiff.
Defendants – (Exparte).
JUDGMENT (EXPARTE)
1. This is suit for recovery of money.
2. Case of the plaintiff, in brief, is as under :
The plaintiff is a body corporate constituted under
the Banking Companies (Acquisition & Transfer of Undertakings) Act,
1970, having its branch office at Nagdevi Street, Mumbai. Constituted
Attorney Pramod Kamble filed the suit for the plaintiff bank. Defendant
no.2 is a proprietary concern represented by proprietor defendant no.1
namely Rishikesh D. Pandey. On an application dated 20/10/2016 of
the defendants, the plaintiff had sanctioned term loan of Rs.6,00,000/
to the defendants for purchasing Hyundai Xcent Car No. MH02EH
2994 to be used as a taxi. Accordingly, sanction letter was issued. The
defendants also executed other documents including Deed of
Hypothecation of the vehicle. Though the loan amount was to be
repaid with monthly installments of Rs.13,100/ within period of 60
months with interest at the rate of 11% p.a., the defendants committed
breach in repayment of the loan amount. Account of the defendants
turned NPA on 09/07/2018. Then, legal notice was issued on
23/03/2018 calling upon the defendants to pay outstanding amount,
-- 2 of 6 --
Comm.Suit No. 31/19. 3 Ex-parte Judgment (Exh.30).
but the defendants failed to make payment. Hence, the plaintiff filed
the suit for recovery of outstanding amount of Rs.4,66,091.58 as on
20/02/2019 with further interest at the rate of 11% p.a. compounded
on monthly rests from the date of filing of the suit till the date of
realization with costs of the suit. He also sought declaration that the
loan amount is duly secured by the valid charge by way of
hypothecation on the said vehicle. He further prayed to fix date for
redemption in case of the defendants' failure to pay dues.
3. The defendants are duly served with writ of summons as
per affidavit of service (Exh.7), but they failed to appear and oppose the
claim of the plaintiff. Therefore, I passed the exparte order against
them on 12/01/2022.
4. PW 1 Shwetambari Kiran Lad, Officer of the plaintiff bank
deposed on evidence affidavit (Exh.8) and proved documents filed with
list of documents (Exh.9). Proved documents are at Exh.10 to 28. The
plaintiff closed evidence vide pursis (Exh.29). Heard learned counsel
Miss A.W.Barve for the plaintiff.
5. After considering pleadings of the plaintiff and evidence on
record, following points arose for my determination with my findings
against them with reasons to follow :
SR.NO. POINTS FINDINGS
1. Does the plaintiff prove that he is
entitled to recover amount of
Rs.4,66,091.58 from the defendants ? If
yes, at what rate of interest ? In the Affirmative.
@ 11% p.a. with
monthly rest.
-- 3 of 6 --
Comm.Suit No. 31/19. 4 Ex-parte Judgment (Exh.30).
2. Does the plaintiff prove that he is
entitled to the relief of declaration that
the loan amount and interest are
secured by valid charge by way of
hypothecation on Hyundai Xcent No.
MH02EH2994 ? In the Affirmative.
3. Does the plaintiff prove that he is
entitled to fix the date for redemption ? In the Negative.
4. Does the plaintiff prove that he is
entitled to sell Hyundai Xcent No. MH
02EH2994 ? In the Affirmative.
5. What order as to costs ? As per final order.
6. What order and decree ? Suit is partly
decreed.
REASONS
AS TO POINT NOS.1 TO 4 :
6. PW 1 Shwetambari Kiran Lad has specifically stated that
the loan amount enumerated in the plaint was sanctioned for
purchasing the vehicle to the defendants. The said vehicle is also
hypothecated as per Exh.15. The defendants failed to make payment.
The defendants neglected to make payment of outstanding loan amount
as stated in statement of account (Exh.28). PW 1 Shwetambari also
proved all other relevant documents including loan application
(Exh.10) and sanction letter (Exh.13). In short, claim of the plaintiff is
proved from oral as well as documentary evidence on record.
7. So far as interest rate is concerned, the plaintiff has claimed
interest at the rate of 11% p.a. as mentioned in demand promissory
-- 4 of 6 --
Comm.Suit No. 31/19. 5 Ex-parte Judgment (Exh.30).
note (Exh.14). Therefore, it can be granted. Furthermore, the plaintiff
is entitled to relief of declaration regarding validity of hypothecation.
He is entitled to sell the vehicle in consonance with terms and
conditions in hypothecation. So far as other reliefs claimed by the
plaintiff are concerned, they are mostly related to execution of decree.
The plaintiff can resort all available remedies under Order XXI of the
CPC in the course of execution. 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 no.1, 2 and 4 in the affirmative and as to point no.3 in the
negative. Hence, I pass the following order :
ORDER
1. Commercial Suit No. 31/2019 is partly decreed.
2. Defendants no.1 and 2 are directed to pay amount of
Rs.4,66,091.58 (Rupees Four Lakhs Sixtysix Thousand
Ninetyone and Paise Fiftyeight Only) to the plaintiff with
interest @ 11% p.a. with monthly rest from the date of the
suit till the date of realization within three months from the
date of decree.
3. Defendants no.1 and 2 shall bear the costs of the suit.
4. Defendants no.1 and 2 shall be jointly and severally liable
to pay decretal amount to the plaintiff.
5. Decree be drawn up accordingly.
(R.R.BHAGWAT)
Judge, City Civil Court,
(Court Room No.31)
Date : 25/03/2022. Mumbai.
1. Dictated online on : 25/03/2022.
2. Signed on : 25/03/2022.
3. Delivered to Certified :
Copy Section on
-- 5 of 6 --
Comm.Suit No. 31/19. 6 Ex-parte Judgment (Exh.30).
“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER”
UPLOAD DATE AND TIME NAME OF STENOGRAPHER
25/03/2022. 2.56 p.m. Miss M.A.Kulkarni.
Name of the Judge (with Court Room no.) HHJ Shri R.R.Bhagwat.
(Court Room No.31).
Date of Pronouncement of Judgment/Order 25/03/2022.
Judgment/Order signed by P.O. on 25/03/2022.
Judgment/Order uploaded on 25/03/2022.
-- 6 of 6 --