Final Order 1

Order Details: Ex-parte Judgement
Pdf Text: C. S. No.355 of 2021 -: 1 :- Ex-parte Judgment
MHCC010062172018
Presented on : 05.05.2018
Registered on : 09.08.2019
Decided on : 22.11.2024
Duration : YY : MM: DD
06 : 06 : 17
Exhibit No.44
IN THE BOMBAY CITY CIVIL COURT AT MAZGAON, BOMBAY
COMMERCIAL SUIT NO. 355 of 2021
(OLD SUMMARY SUIT NO.809 OF 2019)
Daivadnya Saharakari Patpedhi Maryadit,
A Co-Operative Credit Society registered under
the provisions of the Maharashtra Co-Operative
Societies Act, 1960, having its registered address
at 172-C, Swa-Sadan, Ganesh Galli, Lalbag,
Mumbai - 400012. ... Plaintiff
V/s.
Prafull Dattatray Vedak,
Adult, Age: 50 Years, residing at 603, Sai
Sharan, N. C. Kelkar Marg, shivsena Bhavan,
Near Kohinoor Square, Dadar, Mumbai–400 028. ... Defendant
CORAM: HIS HONOUR JUDGE
SHRI. A. S. KAZI
(COURT ROOM NO.14)
DATE : 22.11.2024.
-: Appearances: -
The Ld. Advocate Subhash Bane for the plaintiff.
Defendant Ex-parte.
EX-PARTE JUDGMENT
The plaintiff has filed the present suit against the defendant
for recovery of sum of Rs.21,93,925/- with further interest thereon @
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18 % per annum from the date of filling the suit till its full realization as
per particular of Claim (Exhibit-A).
Herein it is to be seen that, initially the suit was registered as
Summary Suit No.809 of 2019, but later on after physical verification, it
was converted into Commercial Suit after identification dated
01.04.2021.
2) Briefly stated facts of the case are as under: -
The plaintiff is a Co-Operative Credit Society which is
registered under the provisions of Maharashtra Co-Operative Societies
Act, 1960 and carrying on the business of providing finance to its
members.
3) The defendant is the borrower and member of the plaintiff’s
Credit Society.
4) It is submitted that, the defendant approached to the Plaintiff
and applied for Gold Loan on or about August 2011 and accordingly,
the plaintiff during a period from 27.08.2011 to 08.09.2011 had
sanctioned four separate Gold Loans vide Loan account Nos.7326, 7327,
7328 and 7337 to the defendant aggregating to Rs.18.80 Lakhs by
mortgaging gold being of 865.810 net weight 827.530 gms for the
period of the loan for 18 months with interest @ 14% p. a. as per
details mentioned in para No.4 of the plaint. The defendant had
executed certain documents in favour of the plaintiff for the aforesaid
loans purpose and agreed all the terms and conditions of the loan
documents including repayment of loan amount in monthly installments
and interest thereon.
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5) It is further submitted that the defendant has availed of and
utilized the said loan facility. After availing loan facility, the defendant
has not paid any EMI of the said loan, hence, the loan accounts of the
defendant has treated as NPA. Thereafter, the plaintiff has sent various
letter and reminders to the defendant, thereby requested to the
defendant to clear overdue loan amount, however receipt of the notices
and reminders, the defendant neglected and failed to pay monthly
installments regularly. Thereafter, the defendant attended the meeting
of the Managing Committee of the plaintiff and further agreed to repay
the entire loan with interest for that purpose defendant showing his
bonafide issued a cheque bearing No.100033 dated 02.06.2015 for an
amount of Rs.30,15,500/-, but upon representation of the cheque for
encashment, the said cheque could not be en-cashed for the reason of
“Insufficient Funds”. Thereafter, the complaint u/s. 138 of the N. I. Act
was filed against the defendant before Metropolitan Magistrate, which
is pending for adjudication. Thereafter, the plaintiff through its
advocate, issued legal demand notice dated 11.06.2015, calling upon
him to pay overdue amount with interest. After receiving notice, the the
defendant failed and neglected to pay the outstanding amount.
6) It is further submitted that, thereafter, as per the resolution
dated 27.11.2015 (decision of the Managing Committee), Public Notice
in daily news paper Mumbai Tarun Bharat dated 01.12.2015 was
published by the plaintiff and on 22.12.2015, the plaintiff sold the
mortgaged gold of the defendant and after total sale consideration for
sum of Rs.19,86,000/- was deposited / credited in defendant’s aforesaid
loan account. Thereafter, the Plaintiff through its advocate sent a Legal
Demand Notice dated 30.06.2016, calling upon him to pay the sum of
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Rs.16,45,161/- and requested to close all his aforesaid loan accounts.
But of no use.
7) It is also submitted that, during the pendency of the complaint
No.901 of 2015 filed before Metropolitan Magistrate 7th Court at
Bhoiwada, Mumbai, the defendant expressed his willingness to settle
the matter and accordingly settlement terms filed before the M. M.
Court and issued nine cheques in favor of the plaintiff. However,
surprisingly after depositing first two cheques the said cheques were
also dishonoured due to reason “Fund Insufficient”. Upon receipt of the
aforesaid cheque being dishonoured the plaintiff issued a notice dated
18.01.2017 u/s. 138 of the N. I. Act, through its advocate. Thereafter,
the defendant failed and neglected to pay the legitimate dues with
interest to the plaintiff. Hence, the suit for recovery of above said
amount.
8) Inspite of service, the defendant failed to appear hence, suit
proceed Ex-parte against him
vide order dated 23.02.2022.
9) In support of its claim, the plaintiff has filed Claim Affidavit
and examined PW-1 Prafull Bhurke, the Manager and Authorized
Representative of the Plaintiff at Exh.07. The plaintiff got proved
documents through this witness filed along-with list Exh.08 and also
filed Additional List of Documents at Exh. 09. The plaintiff has filed
Evidence Closing Pursis at Exh.43.
10) Heard the learned Advocate for the plaintiff. Perused the
record.
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11) Following points arise for my determination, to which I have
given my findings with reasons as follows: -
Sr.
No.
Points Findings
1. Whether the plaintiff is entitled for
recovery of sum of Rs.21,93,925/-
with further interest thereon @ 18 %
per annum from the date of filling
the suit till its full realization as per
particular of Claim (Exhibit-A), as
claimed?
Partly, In the
Affirmative.
2. What Order and Decree? As per final order.
REASONS
As to point Nos.1 & 2: -
12) PW-1 has deposed as per the contents of the plaint averments.
Hence, I do not want to reproduce the same to avoid the repetitions.
The plaintiff has filed original Resolution dated 02.05.2018 at Exh.10,
thereby witness has been authorized to depose on behalf of the plaintiff.
The testimony of witness has remained unchallenged.
13) The learned Advocate for the plaintiff argued that, an amount
of Rs.21,93,925/- is due and recoverable from the defendant. To
Substantiate its claim, the plaintiff has relied upon documents such as;
Original Loan Application Form dated 27.08.2011 in respect of Gold
Loan Account No.7326 (Exh.11); Original Agreement for Gold Loan and
Demand Promissory Note dated 27.08.2011 in respect of Gold Loan
Account No.7326 (Exh.12 Colly.); Original Loan Sanction Letter dated
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27.08.2011 in respect of Gold Loan Account No.7326 (Exh.13); Original
Receipt dated 27.08.2011 in respect of Gold Loan Account No.7326
(Exh.14); Office copy of letter dated 27.08.2011 in respect of Gold Loan
Account No.7326 (Exh.15); Original Loan Application Form dated
27.08.2011 in respect of Gold Loan Account No.7327 (Exh.16); Original
Agreement for Gold Loan and Demand Promissory Note dated
27.08.2011 in respect of Gold Loan Account No.7327 (Exh.17 Colly.);
Original Loan Sanction Letter dated 27.08.2011 in respect of Gold Loan
Account No.7327 (Exh.18); Original Receipt dated 27.08.2011 in
respect of Gold Loan Account No.7327 (Exh.19); Office copy of letter
dated 27.08.2011 in respect of Gold Loan Account No.7327 (Exh.20);
Original Loan Application Form dated 30.08.2011 in respect of Gold
Loan Account No.7328 (Exh.21); Original Agreement for Gold Loan and
Demand Promissory Note dated 30.08.2011 in respect of Gold Loan
Account No.7328 (Exh.22 Colly.); Original Loan Sanction Letter dated
30.08.2011 in respect of Gold Loan Account No.7328 (Exh.23); Original
Receipt dated 30.08.2011 in respect of Gold Loan Account No.7328
(Exh.24); Original letter dated 30.08.2011 issued by defendant’s wife
(Exh.25);.Copy of letter dated 30.08.2011 issued by Branch Manager
(Exh.26); Original Loan Application Form dated 18.09.2011 in respect
of Gold Loan Account No.7337 (Exh.27); Original Agreement for Gold
Loan and Demand Promissory Note dated 18.09.2011 in respect of Gold
Loan Account No.7337 (Exh.28 Colly.); Original Loan Sanction Letter
dated 18.09.2011 in respect of Gold Loan Account No.7337 (Exh.29);
Original Receipt dated 18.09.2011 in respect of Gold Loan Account
No.7337 (Exh.30); Office copy of letter dated 18.09.2011 in respect of
Gold Loan Account No.7337 (Exh.31); Original Cheque dated
02.06.2015 (Exh.32); Original Return Memo dated 04.06.2015
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(Exh.33); Copy of Order dated 29.08.2018 (Exh.34); Office copy of
Legal dated 05.06.2015 (Exh.35); Original Postal Receipt and Postal
Acknowledgment (Exh.36); Office copy of Notice dated 11.06.2015
(Exh.37); Original Letter dated 28.01.2016 (Exh.38); Office copy of
Legal Demand Notice dated 30.06.2016 (Exh.39); Original Postal
Receipt (Exh.40); Original Returned Envelopes (Exh.41) and Original
Chart of Outstanding along with an Original Statement of Loan Account
No.7326 to 7328 and 7337 for period from 27.08/.011 to 31.07.2022
(Exh.42 Colly).
14) It is submitted that, the loan was disbursed during the period
from 27.08.2011 to 08.09.2011. The defendant failed to repay the
same, and after sale consideration from the mortgaged gold of the
defendant Rs.19,86,000/- is credited on account of defendant on
22.12.2015. Thereafter, the defendant issued cheque dated 02.06.2015,
which was dishonoured on 04.06.2015. Thereafter, the plaintiff issued
legal notice dated 05.06.2015, 11.06.2015 and Advocate’s Demand
Notice dated 30.06.2016 and thereafter, the above suit is lodged on
05.05.2018, thus, it is well within limitation.
15) Upon perusal of said documents, the plaintiff duly proved its
claim against the defendant. The testimony of plaintiff's witness has
remained unshattered. There is no challenge to the documentary
evidence produced by the plaintiff. Thus, in view of my above discussion
and considering the pleadings and evidence adduced by the plaintiff,
the plaintiff duly proved that, the defendant is liable to pay due amount
of Rs.21,93,925/- together with further interest. So far as, the interest
on the said amount is concerned, the plaintiff has claimed further
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interest @ 18 % per annum. However, as per the prevailing market rate
of interest, in my opinion, if interest is awarded @ 9 % per annum from
the date of the suit till its full and final realization, it would meet the
ends of justice. Thus, in view of my above discussion, my answer to
point No.1 is in partly affirmative and proceed to pass the following
order:-
ORDER
1) Commercial Suit No.355 of 2021 is partly decreed with Costs.
2) The defendant does pay an amount of Rs.21,93,925/- together
with further interest thereon @ 9 % per annum from the date of the suit
till its full and final realization.
3) Decree be drawn up accordingly.
4) Commercial Suit No.355 of 2021 disposed off accordingly.
(A. S. Kazi)
Addl. Sessions Judge,
City Civil & Sessions Court,
Date: 22.11.2024. Mazgaon, Gr. Mumbai
(C. R. No.14)
Direct Typed On : 22.11.2024.
Signed on : 22.11.2024.
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“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER.”
UPLOAD DATE: 22.11.2024 NAME OF STENOGRAPHER
TIME: 04.30 p.m. Mr. Ashok Sudhakar Patil
Name of the Judge (With Court
room no.)
HHJ Shri. A. S. Kazi.
(Court Room No.14)
Date of Pronouncement of
JUDGEMENT/ORDER
22.11.2024
JUDGMENT/ORDER signed by P. O.
on
22.11.2024
JUDGEMENT/ORDER uploaded on 22.11.2024
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