Order 1

Order Details: Ex-parte Judgement
Pdf Text: 1 Judgment in Commercial Suit No. 225/2021
Lodged on : 03.05.2018
Admitted on : 01.11.2018
Decided on : 06.07.2022
Duration : Y M D
4 2 3
COMMERCIAL SUIT NO. 225 of 2021
(S.C.SUIT NO. 2901 OF 2018)
CNR NO. : MHCC010059872018
Exh.25
Union Bank of India
A body corporate constituted under
the Banking Companies (Acquisition &
Transfer of Undertakings) Act, 1970
having its Head Office at 239,
Vidhan Bhavan Marg, Nariman
Point, Mumbai – 400 021,
and one of its Branch office amongst
others known as Mazgaon Branch,
Premsagar, Nesbit Road, Mazgaon,
Mumbai – 400 010, through its
Assistant General Manager
Mr. K.P. Singh, age 51 years. ...Plaintiff
Versus
1. M/s. Dr. Ravi Bangadkar Nursing Home
Through Proprietor Dr. Ravi Bangadkar,
A/20, Bharat Nagar, Opposite Shalimar
Cinema, Grant Road (East), Mumbai 400 007.
2. Mr. Ravi Bangadkar
A/20, Bharat Nagar, Opposite Shalimar
Cinema, Grant Road (East), Mumbai 400 007,
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2 Judgment in Commercial Suit No. 225/2021
Age 46 years. . ….Defendants
Appearance:
Adv. Mr. Vyenkatesh Mishra for Plaintiff.
Defendant exparte.
CORAM : SHRI. A.S.SALGAR
ADHOC JUDGE,
(C.R.NO.31)
DATED : 6th JULY 2022
J U D G M E N T
(Delivered on : 06.07.2022)
The plaintiff has filed this suit for recovery of the amount of
Rs. 9,65,789/ from the defendants along with interest. Initially, the suit
came to be registered as S.C. Suit No. 2901 of 2018. After scrutiny of
the papers, it came to be registered as Commercial Suit No. 225 of
2021.
2. Brief facts of the plaintiff's case is as under:
The plaintiff is a body corporate constituted under the
Banking Companies (Acquisition & Transfer of Undertakings) Act, 1970
having its head office at Nariman Point, Mumbai and one of its branch
is at Mazgaon. The defendants approached to the plaintiff bank for a
term loan under Pradhanmantri Mudre Scheme under Union CGTMSE
Scheme has been sanctioned to the defendants on 02.02.2016 to
purchase equipments for Nursing Home. The plaintiff bank sanctioned a
term loan of Rs. 10 lacs against hypothecation of equipment to be
purchased with rate of interest of 11.15% per annum with monthly rests
repayable on 60 monthly installments of Rs. 16,667/ and plus interest
commencing from April 2016. In consideration of the aforesaid credit
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3 Judgment in Commercial Suit No. 225/2021
limit having been granted to the defendants, to secure all amounts due
and payable thereunder, the defendants executed agreements,
documents for Rs. 10 lacs in favour of the plaintiff, by accepting all the
terms and conditions stipulated therein. The defendants executed
D.P.Note, letter of continuity, letter of undertaking, General Term Loan
Agreement, Composite Hypothecation Deed and Copy of Agreement of
rate of interest.
3. The plaintiff further submitted that the defendants have
purchased the equipment of Nursing Home by availing the term loan.
The defendants have hypothecated these purchased equipments in
favour of the plaintiff. The plaintiff further submitted that despite
several requests, reminders and demands made by the plaintiff, the
defendants have failed and neglected to pay monthly interest charged in
the account. The plaintiff through their Advocate called upon the
defendants to make repayment of the due amount by serving registered
notice through its Advocate on 24.02.2018. There is now due, owing
and payable by the defendants to the plaintiff outstanding dues Rs.
9,65,789/.The plaintiff apprehends that the defendants may sell the
hypothecated equipments of the Nursing Home. Hence, the plaintiff
prayed that the suit be decreed with costs.
4. The Writ of Summons was issued to the defendant nos. 1
and 2 through RPAD and it was duly served as per track report. The
defendant nos. 1 and 2 failed to appear before the Court. Hence, the
suit was proceeded exparte against defendant nos. 1 and 2.
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5. In order to prove the claim on behalf of the plaintiff bank,
Mr. Vikas Khanna, the Chief Manger and authorized officer of the Union
Bank of India is examined at Exhibit 10. The plaintiff also placed on
record the documentary evidence i.e. Application Form (Exh.12),
Sanctioned letter (Exh.13), Letter of Continuity (Exh.14), General Term
Loan Agreement (Exh.15), Letter of undertaking not to alienate
hypothecated goods (Exh.16), Original Composite Hypothecation Deed
(Exh.17), Original Agreement on rate of interest (Exh.18), Details of
hypothecated hospital equipments (Exh.19), Particulars of claim
(Exh.20), Statement of Account (Exh.21), Legal notice with speed post
receipts and postal cards (Exh.22 colly.), Authority letter (Exh.23),
Evidence closure pursis filed by the plaintiff (Exh.24).
6. 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 bank proves
that an amount of Rs.9,65,789/ is
due from the defendants?
In the affirmative.
2) Whether plaintiff bank is entitled
to recover an amount of
Rs.9,65,789/from the defendants?
If yes, at what rate of interest ?
In the affirmative.
At the rate of Rs.11.15% per
annum.
3) What order and decree? Suit is decreed with costs.
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R E A S O N S
7. Heard Learned Advocate Mr. Vyenkatesh Mishra for the
Plaintiff at length.
As to point nos. 1 to 3
8. It is the case of the plaintiff bank that the defendants
approached to the plaintiff bank for a term loan of Rs. 10 lacs against
the hypothecation of equipment to be purchased. The plaintiff bank
sanctioned a term loan to the defendants. The defendants have
executed various documents in favour of the plaintiff bank and thereby
promised to pay the loan amount on demand. However, the defendants
failed to reply the amount. Therefore, the plaintiff sent notice to the
defendants through Advocate and called upon him to make repayment
of the due amount, but the defendants failed to repay the amount.
According to the plaintiff, total amount of Rs. 9,65,789/ is outstanding
from the defendants. In this case, the summons was duly served to the
defendants, but the defendants failed to appear before the Court. The
defendants have not filed any Written Statement. It appears that the
averments made in the plaint were not denied or disputed by the
defendants by filling the Written Statement. In other words, the
averments made in the plaint is deemed to be admitted by the
defendants.
9. In support of the pleadings, the plaintiff also filed on record
the documentary evidence at Exhibit 10 and 12 to 22. The plaintiff bank
also examined Chief Manager of the plaintiff bank namely Mr. Vikas
Khanna at Exhibit 10. He has reiterated the contents of the plaint in his
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Affidavit. He also deposed that the plaintiff bank has sanctioned loan of
Rs. 10 lacs to the defendants. He further deposed that the defendants
have executed the Agreement, D.P. Note, Letter of Continuity, Letter of
undertaking, General Term Loan Agreement, Original Composite
Hypothecation Deed and Original Agreement on rate of interest. It also
shows that the defendants have purchased the equipment by availing
the term loan. The defendants have failed and neglected to pay the
monthly charge of the account and to pay the dues to the plaintiff bank.
Therefore, the plaintiff sent notice to the defendants to make repayment
of the due amount. According to the plaintiff, an amount of Rs.
9,65,789/ is outstanding from the defendants. This oral evidence of the
plaintiff is not subjected to cross examination. The defendants failed to
conduct the cross examination of the plaintiff. Therefore, the oral
evidence adduced by the plaintiff remained unchallenged. Therefore, I
have no reason to disbelieve the version of the plaintiff's witness no. 1.
10. The oral evidence of the plaintiff bank is also supported by
documentary evidence at Exh.12 to 22. The copy of loan application
Exh.12 shows that the defendants have approached to the plaintiff bank
for loan of Rs. 10 lacs. The copy of Sanctioned letter at Exhibit 13
shows that the plaintiff bank has sanctioned loan of Rs. 10 lacs to the
defendants on terms and conditions. The letter of continuity at Exh.14
shows that the defendants have executed Demand Promissory Note in
favour of the plaintiff bank and it bears the signature of the defendants.
The General Term Loan Agreement at Exh.15 also shows that the
defendants have executed the agreement in favour of the plaintiff bank
and the defendants agreed the terms and conditions upon which the
loan is granted to them. Letter of Undertaking at Exh.16 shows that the
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defendants have executed the said letter of undertaking in favour of the
plaintiff bank and thereby agreed that he will not create any charge
over the hypothecated goods. The Composite Hypothecation Deed at
Exh.17 shows that the defendants had executed the said Agreement in
favour of the plaintiff bank. The another Agreement at Exhibit 18 shows
that the defendants had executed the Agreement on rate of interest. The
statement of account Exh.21 also shows that an amount of Rs.
9,65,789/ is outstanding from the defendants. The aforesaid
documentary evidence adduced by the plaintiff bank was not challenged
by the defendants. These documents clearly shows that on the request
of the defendants, the plaintiff bank has sanctioned loan of Rs. 10 lacs
to the defendant and in order to obtain the loan, the defendants have
executed various documents such as D.P. Note, Letter of Continuity,
Letter of undertaking, General Term Loan Agreement, Original
Composite Hypothecation Deed and Original Agreement on rate of
interest. From the statement of account, prima facie it appears that an
amount of Rs. 9,65,789/ is outstanding from the defendants. It is also
seen from the record that the registered notice was issued to the
defendants through Advocate. The copy of same is at Exh.22. The notice
was duly served to the defendants, but the defendants failed to reply
the said notice. Therefore, inference can be drawn that an amount of
Rs. 9,65,789/ is outstanding from the defendants. The plaintiff by
adducing oral and documentary evidence sufficiently proved that an
amount of Rs. 9,65,789/ is outstanding from the defendants.
11. The plaintiff has claimed interest at the rate of 10.45% per
annum, but the copy of Agreement as well as Agreement of rate of
interest shows that the defendants have agreed to pay interest at the
rate of 11.15% per annum. Therefore, the plaintiff bank is entitled to
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claim of Rs. 9,65,789/ along with interest at the rate of 11.15% per
annum. In the light of above discussion, I record my finding as to points
no. 1 in the affirmative and point no. 2 accordingly. Hence, I pass the
following order:
ORDER
1) Commercial Suit No. 225 of 2021 is decreed with costs.
2) The defendants are directed to pay an amount of
Rs.9,65,789/ (Rs. Nine Lacs Sixty Five Thousand Seven
Hundred and Eighty Nine Only) to the plaintiff bank
within three months from the date of decree.
3) The defendants are further directed to pay interest at
the rate of 11.15% per annum on the principal amount
of Rs.9,65,789/ from the date of the suit till
realization.
4) Defendants shall bear the costs of the suit.
5) Decree be drawn up accordingly.
(Judgment pronounced in the open Court)
Dated : 06.07.2022 (A.S. Salgar)
Adhoc Judge,
City Civil Court
Gr. Mumbai.
Dictated on : 06.07.2022
Typed on : 07.07.2022
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9 Judgment in Commercial Suit No. 225/2021
CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER”
UPLOAD DATE TIME NAME OF STENOGRAPHER
07.07.2022 4.30 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.
06.07.2022
Judgment/order signed by P.O on 07.07.2022
Judgment/order uploaded on 07.07.2022
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