Final Order 2

Order Details: Copy of Judgment
Pdf Text: CS No.100762/2021
Canara Bank – Vighanharta Judgment (Exh.38) 1 of 6
MHCC010056892018 Suit Filed on : 25.04.2018
Evidence closed : 10.04.2023
Arguments Heard : 13.02.2024
Decided on : 16.02.2024
Duration : 05 Y, 09 M, 22 Days
City Civil & Sessions Court, Mazgaon, Greater Mumbai
Court Room No. 31 – Commercial Court,
(Additional District Judge : Vijay S. Hingne, LL. M.)
Commercial Suit No. 100762 / 2021 Exhibit No. 38
Plaintiff : Canara Bank
Through Chief Manager,
Office at Canara Bank, Nerul Branch (East)
Navi Mumbai 400 706.
VERSUS
Defendant : M/s. Vighanharta Travels
Prop. : Mr. Naresh Krishna Gurav
S.T. Road, Opp. Suman Nagar, Panchmukhi
Rajwanshi Sangh, Chawl No. 3,
Chembur, Mumbai 400 071.
Appearances
Plaintiff
: Adv. Ms. Aarti Bhide
Defendant
: Adv. Shri Shankar Parab
Suit for Recovery of .	₹ 7,77,563.37/-
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J U D G M E N T
(Delivered on this 16th Day of February, 2024)
Suit is preferred for recovery of .	₹ 7,77,563.37/- with
interest @ 9.70 % plus penal interest @ 2 % per annum.
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Case of Plaintiff :
2) Canara Bank, Nerul Branch, Navi Mumbai,
Maharashtra, (hereinafter,
plaintiff) is banking institution.
M/s. Vighanharta Travels is proprietary concern of
Naresh Krishna Gurav (hereinafter
defendant).
3) On 15.12.2015, defendant, under Canara Pragati SME
SRTO Service, requested loan of .	₹ 8,95,000/- for purchase of
new Nissan Sunny XLD (hereinafter,
Car). Accordingly, plaintiff
provided said finance. Defendant executed related documents and
agreed to repay the loan in 60 EMI of .	₹ 19,493/- with interest @
10.20 % p. a. However, thereafter, defendant defaulted the
payment. As per statement of plaintiff, defendant was under
liability of .	₹ 7,77,563.37/-. Hence, plaintiff issued Notice on
27.03.2018, asking defendant to repay the loan. However,
defendant defaulted. Hence, plaintiff preferred present Suit for its
recovery with interest @ 9.70 % plus penal interest @ 2 % p. a.
Defendant (Written Statement, Exh. 4, Dt. 07.04.2022):
4) Defendant denied the Plaint and prayed for its dismissal
on following grounds :-
1. Defendant had obtained loan of .	₹ 8,95,000/-. However,
within 1 and ½ year, he lost his business and hence, was
unable to pay the EMI. Defendant requested that,
plaintiff may take the Car. Plaintiff took possession of
Car in August 2018, but without consent of defendant.
Plaintiff had suppressed said fact.
2. Suit is barred by limitation.
Evidence of Plaintiff :
5) Plaintiff adduced oral and documentary evidence as :
PW1, Exh.7 : Evidence of Branch Officer Yasmin Bhanu
Exh.9 : Loan Application Dt. 15.12.2015.
Exh.10 : CIBIL record of Defendant.
Exh.11 : Registration Certificate of Establishment.
Exh.12 : Pan Card of defendant.
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Exh. 13 : Maharashtra State Driving License.
Exh.14 : Aadhar Card of Defendant.
Exh.15 : Ration Card of Defendant.
Exh. 16 : Electricity Bill of Defendant.
Exh. 17 : Sanction Letter Dt. 15.12.2015.
Exh. 18 : Pre Sanction Inspection.
Exh. 19 : Vehicle Receipt of Ritu Automobiles .	₹
8,95,000/-.
Exh.20 : Vehicle Receipt of Ritu Automobiles .	₹
1,59,071/-.
Exh. 21 : Tax Invoice by Dealer Ritu Hyundai .	₹
8,97,000/-.
Exh. 22 : Proforma Invoice.
Exh. 23 : Motor Insurance Certificate Cum Policy Schedule.
Exh. 24 : Certificate of Registration.
Exh. 25 : State Transport Authority,
Exh. 26 : Vehicle Inspection Report.
Exh. 27 : Letter of Evidencing Execution of Document.
Exh. 28 : Deed of Hypothecation executed by Defendant.
Exh. 29 : Letter of Undertaking.
Exh. 30 : Certificate of loan papers obtained.
Exh. 31 : Particulars of Vehicles hypothecated.
Exh. 32 : Recall Notice Dt. 19.04.2017.
Exh. 33 : Recall Notice Dt. 02.05.2017.
Exh. 34 : Legal Notice 27.03.2018.
Exh. 35 : Tracking Report showing service on defendant.
Exh. 36 : Authority letter
Exh. 37 : Evidence closure pursis filed by plaintiff.
6) Plaintiff witness examined himself on 12.01.2023.
Accordingly, the cross-examination was adjourned to 13.02.2023.
However, thereafter, defendant failed to appear to conduct the
cross-examination. Hence, my Learned Predecessor, vide
Roznama-Order Dt. 10.03.2023, closed the right of defendant to
cross examine the plaintiff witness. On same day, plaintiff filed
evidence closure pursis (Exh. 37).
Thereafter, defendant was repeatedly directed to adduce
evidence, but it failed. Hence, my Learned Predecessor vide
Order Dt. 10.04.2023, closed the evidence of defendant and the
Suit was adjourned for final arguments.
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On 13.02.2024, plaintiff advanced her arguments.
Considering long absence of defendant since
07.04.2022, Suit is being disposed off, in absence of defendant.
Issues for determination :
7) Heard Adv. Ms. Aarti Bhide for plaintiff. Perused
Record. Issues , findings and reasons are as follows :
Issues
Findings
1. Whether plaintiff prove that
amount of .	₹
7,77,563.37/- is
outstanding from defendant?........ In the Affirmative
2 Whether defendant proves that he
handed over the vehicle to
plaintiff in the year 2018?............ In the Affirmative.
3 Whether suit is maintainable? In the Affirmative.
4 Whether suit is within limitation? In the Affirmative.
5 Whether plaintiff is entitled to
recover amount of .	₹
7,77,563.37/- from defendant?..... As per final order.
6 Whether plaintiff is entitled to
claim future interest from
defendant? If yes, what rate of
interest?........................................ As per final order.
7 What Order and decree?.............. As per final order.
R E A S O N S
Reasons as to Issue No. 4 - Limitation :
8) As per plaintiff, loan was sanctioned on
16.12.2015.
Therefore, three years limitation for plaintiff to prefer
recovery Suit will conclude on,
15.12.2018.
Suit is filed on
25.04.2018.
It means, the Suit is filed with limitation period of three
year. Therefore, the defense of limitation, fails. Hence,
issue No.
4 is answered in Affirmative.
Reasons as to Issue No. 1, No. 2, No. 3 and No. 5 :
9) All Issues being inter-connected, are taken for common
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discussion.
10) Plaintiff examined its Branch Officer Yasmin Bhanu
(PW1, Exh.7). He deposed in accordance with pleadings from
Plaint and claimed that, defendant executed documents at Exh.9,
Exh.17, Exh.27 to Exh.31, availed loan and then defaulted the
repayment. He further deposed that, they have seized the CAr.
According to plaintiff, these are original documents,
which bear signature of defendant and they prove the transaction.
11) Despite appearing in the Suit and filing Written
Statement, defendant did not took any steps to conduct the cross-
examination of plaintiff to prove its defenses.
In fact, in Written Statement (Para No. 4), defendant
categorically admitted that, he had applied and had availed the
loan of .	₹ 8,95,000/-. Thereafter, he further pleaded that, he failed
to repay the loan.
These admissions by defendant in Written Statement
proves the existence of liability.
Thereby, plaintiff is entitled for recovery with interest.
It is admitted that, the Car is seized by the plaintiff.
There is no pleading and evidence from the defendant
which will challenge the maintainability of the Suit.
Hence, all these Issues are so answered.
Reasons as to Issue No. 6 & No. 7:
12) Plaintiff has claimed interest @ 9.70 % per annum.
Perusal shows that, in Letter of Sanction Dt. 15.12.2015
at Exh. 17, parties have agreed rate of interest @ 10.20 % p. a. If
parties have agreed on particular rate of interest, then such rate of
interest can be awarded. However, plaintiff has claimed rate of
interest @ 9.70 % per annum. Hence, said interest can be made
applicable. Accordingly, Issue No. 6 is so answered.
13) In view of unchallenged oral and documentary evidence
of the plaintiff, the Suit is entitled for Decree. Therefore, Suit is
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partly decreed, as follows :
ORDER
1. Commercial Suit No. 100762 / 2021, Canara Bank Vs
M/s. Vighanharta Travels, is partly decreed, with
proportionate cost.
2. Defendant, within three months from date of this Order,
shall pay, . 7,77,563.37
₹
/- ( . Seven Lakhs Seventy
₹
Seven Thousand Five Hundred Sixty Three and Thirty
Seven Paise Only) to the plaintiff, with interest @ 9.70
% per annum from the date of filing of the Suit till its
realization.
3. Court fee, if any, be refunded to the plaintiff as per rule.
4. Decree be drawn up accordingly.
5. Judgment dictated and pronounced in Open Court.
6. Parties be informed about their right to challenge this
Judgment and period of limitation for same.
7. After compliance and period of Appeal, Shirestedar and
AS to consign Record of the Suit, to Record Room.
Mumbai
Dated : 16.02.2024 (Vijay S. Hingne)
Additional District Judge,
Court Room No.31 - Commercial Court,
City Civil & Sessions Court,
Mazgaon, Greater Mumbai
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