Order 1

Order Details: Copy of Judgment
Pdf Text: Judgment in
Suit No. 444 of 2021 1
MHCC010057142018
Presented on : 25-04-2018
Registered on : 01-09-2018
Decided on : 15-07-2023
Duration : 5 Yr, 2M, 20 D
IN THE CITY CIVIL COURT FOR GR. BOMBAY AT MUMBAI
SHORT CAUSE SUIT NO.444 OF 2021.
Exh.6.
CANARA BANK, ]
A Banking Company incorporated under the ]
the Banking Companies (Acquisition & Transfer ]
of Undertakings) Act.,1970 ]
having its Head Office at 112,J.C. Road, ]
Bangalore – 569 992, and Branch Office ]
at Mazgoan Main Branch, 38/42, Dockyard ]
Road, Mazgaon, Mumbai – 400 010. ]
Through Mr. Ashok Kumar Meena, Officer, ]....Plaintiff.
Vs.
M/s.Malve Tours and Travels ]
Through Prop.: Mr. Nilesh Suresh Malve. ]
Having address at Om Balaji Building, ]
Flat No. 102, First Floor, Near Sec. 18 Talav ]
Sec. 20, Nerul, Navi Mumbai – 400 706. ]….Defendant.
Appearance:
Adv. Ms.Fatima Lakdawala for the plaintiff.
Defendant – Exparte.
SUIT FOR RECOVERY OF MONEY
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Judgment in
Suit No. 444 of 2021 2
Coram : Shri. U.C.Deshmukh.
Judge.
CR No. : 59.
Date :15th July, 2023.
ORAL JUDGMENT
This is suit for recovery of an amount of Rs.5,96,089/- at
the rate of interest 14.05% p.a.
Brief facts of the plaintiff’s case are as under :
2. The plaintiff contends that it is a body corporate
constituted under the Banking Companies (Acquisition and Transfer of
Undertaking) Act 1970. It further contends that defendant made
application for loan on 03.12.2015 to purchase motor vehicle. The
plaintiff sanctioned loan of Rs.9,49,000/- on 04.12.2015. Accordingly,
the defendant executed undertaking on 05.12.2015 to repay the loan.
He also executed Hypothecation Deed of the Car on 05.12.2015.
3. The plaintiff specifically contends that on 04.08.2015
defendant failed to repay the loan. Hence, notice was issued on
26.09.2017 to repay the loan worth of Rs.5,06,348/-. Hence, this suit.
4. Defendant is duly served with writ of summons but he
failed to appear. Therefore, the suit proceeded exparte against the
defendant as per order dated 22.01.2019.
5. After suit proceeded exparte, the plaintiff examined one
witness viz. Mr. Nishant Sinha, Credit Officer who has filed his affidavit
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in lieu of examination in chief at Exh. 3. The Plaintiff had also filed list
of documents at Exh.4. The plaintiff has evidence close pursis vide
Exh.5. The plaintiff filed following documents along with Exh.4 which
he has proved the same in evidence as follows :
Sr.
No.
Documents.
1. Copy of Power of Attorney of Mr. Nishant Sinha.
2. Original Application form for loans to Micro and Small
Enterprises.
3. Original proforma Invoice dated 09.12.2015 along with
receipt dated 09.12.2015.
4. Original Sanction letter dated 04.12.2015.
5. Original Form NF-373 Particulars of vehicles/Machinery/
Equipment/Livestock etc.Hypothecation
6 Original Deed of Hypothecation dated 05.12.2015
7 Original Letter of Undertaking dated 05.12.2015
8 Original Standing Instruction Undertaking Form
9. Original Certificate of Insurance Policy.
10. Copy of Legal Notice dated 26.09.2017 & Proof of dispatch
dated 28.09.2017.
11. Original POA
12. Original bankers Book Evidence Act
13 Original Certificate U/sec. 2-A of the amended bankers
books evidence act, 1891 as prescribed in the schedule III of
the I.T. Act, 2000.
6. It is submission made by Ld.advocate for the plaintiff that
the suit is proceeded exparte. The pleading and evidence of the plaintiff
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remained unchallenged. Hence, there is no reason to discard the suit.
Consequently, prayed to decree the suit.
7. Considering the facts, evidence and law applicable to the
case, following points arise for determination.:
Sr. No. POINTS FINDINGS
1. Does the plaintiff prove that he is
entitled to recover an amount of
Rs.5,96,089/-with interest at the
rate of 12.05% p.a. from the date
of the suit?
..Partly Yes..
with interest @
10.05% pa.
2. Whether the suit is within the
limitation?
..Yes..
3. What order and decree? Suit is partly
decreed.
:REASON:
As to point No. 1 & 2:
8. It is needless to say that as suit proceeded exparte, hence,
the pleading and evidence of the plaintiff has remained unchallenged.
Therefore, there is no reason to discard the case. The affidavit of
evidence at Exh.3 and documents filed on record show that the term
loan was sanctioned by the plaintiff to defendant but he failed to pay.
The plaintiff has succeeded to show that the amount of Rs.5,06,348/-
was due from defendants on account of loan advanced to defendant.
Now peculiar question arise, whether the suit is within the limitation.
9. The plaintiff has filed on record loan application, sanction
letter, certificate of loan papers obtained and other original documents
which show that there is agreement between the plaintiff and defendant
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Suit No. 444 of 2021 5
and the plaintiff had advanced loan to defendant to purchase vehicle.
All these documents supports the case of the plaintiff.
10. Defendant failed to repay the installment from 05.10.2017.
The plaintiff has issued notice dtd.26.09.2017 for payment of his
outstanding. Above documents along with statement of account
establish that plaintiff Bank sanctioned and disbursed an amount of
Rs.5,06,348/- to the defendant as vehicle loan. The plaintiff has filed on
record the statement of account. On perusal of it, it reveals that on
05.04.2018, the defendant is liable to pay an amount of Rs. 5,90,089/-.
The suit is instituted on 25.04.2018. Considering the date of the
sanction of the loan, the suit is within the limitation. Though the
plaintiff claimed vehicle interest at the rate of 12.05% p.a. However, it
has not filed in documents to support his contention. Hence as per loan
agreement, the defendant is liable to repay the loan amount at the rate
of 10.05 % p.a. Resultantly, point Nos. 1 & 2 is answered in the
affirmative.
11. The suit is proceeded exparte. The suit is going to decree.
In such circumstances, it would be just and proper to direct the plaintiff
to bear the costs of the proceedings. Accordingly, in answer to point No.
3, following order is passed :
ORDER
1. Suit No. 444 of 2021 is partly decreed.
2. Defendant to pay an amount of Rs.5,96,089/- to the plaintiff
with interest at the rate of 10.05% p.a. from the date of the suit
till entire amount is realised.
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3. Defendants to pay aforesaid decreetal amount within 2 months
of the order.
4. The plaintiff to bear cost of the suit.
5. Decree be drawn up accordingly.
6. Suit No. 444 of 2021 is disposed off accordingly.
(Dictated and Pronounced in Open Court)
(U.C.Deshmukh)
Judge,
City Civil and Sessions Court
Date.:15.07.2023 Greater Bombay (CR 59)
Declared on : 15.07.2023
Dictated on : 15.07.2023
Transcribed on : 07.08.2023
Checked on : 07.08.2023
Signed on :
CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER”
14.08.2023 at 12.30 -p.m. Mrs. P.R.Wagh
UPLOAD DATE AND TIME NAME OF STENOGRAPHER
Name of the Judge (with Court
Room No.)
HHJ SHRI.U.C.Deshmukh,(C.R.No.59)
Judge.,City Civil & Sessions Court,
Date of pronouncement of /Order 15.07.2023
Order signed by P.O. on 10.08.2023
order uploaded on 14.08.2023
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