Order 1

Order Details: Ex-parte Judgement
Pdf Text: C. S. No.354 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.32
IN THE BOMBAY CITY CIVIL COURT AT MAZGAON, BOMBAY
COMMERCIAL SUIT NO. 354 of 2021
(OLD SUMMARY SUIT NO.810 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.
Supriya Prafull Vedak
Adult, Age about 45 years,
Indian Inhabitant of Mumbai, residing at 603,
Sai Sharan, N. C. Kelkar Marg, Shivsena Bhavan,
Near Kohinoor Square, Dadar, Mumbai -400028. ... 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.15,11,857/- with further interest @ 18 % per
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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.810 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 on 26.08.2011 had sanctioned two separate Gold Loans
vide Loan account Nos.7322 and 7323 to the defendant aggregating to
Rs.15.50 Lakhs by mortgaging gold being of 704.260 net weight
699.600 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 above loan 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 upon 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 her bonafide issued a cheque bearing No.100034 dated
02.06.2015 for an amount of Rs.24,88,800/-, 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 her to pay overdue amount with interest. After receiving
notice, 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.16,70,000/- was deposited / credited in defendant’s aforesaid
loan account. Thereafter, the Plaintiff through its advocate sent a Legal
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Demand Notice dated 30.06.2016, calling upon her to pay the sum of
Rs.11,67,757/- and requested to close all her 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 her 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 her
vide order dated 23.02.2022.
9) In support of its claim, the plaintiff has field Claim Affidavit
and examined PW-1 Prafull Vishwanath 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.31.
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10) Heard the learned Advocate for the plaintiff. Perused the
record.
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.15,11,857/-
with further interest @ 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.15,11,857/- is due and recoverable from the defendant. To
Substantiate its claim, the plaintiff has relied upon documents such as;
Original Loan Application Form dated 26.08.2011 in respect of Gold
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Loan Account No.7322 (Exh.11); Original Agreement for Gold Loan and
Demand Promissory Note dated 26.08.2011 in respect of Gold Loan
Account No.7322 (Exh.12 Colly.); Original Loan Sanction Letter dated
26.08.2011 in respect of Gold Loan Account No.7322 (Exh.13); Original
Receipt dated 26.08.2011 in respect of Gold Loan Account No.7322
(Exh.14); Office copy of letter dated 26.08.2011 in respect of Gold Loan
Account No.7322 (Exh.15); Original Loan Application Form dated
26.08.2011 in respect of Gold Loan Account No.7323 (Exh.16); Original
Agreement for Gold Loan and Demand Promissory Note dated
26.08.2011 in respect of Gold Loan Account No.7323 (Exh.17 Colly);
Original Loan Sanction Letter dated 26.08.2011 in respect of Gold Loan
Account No.7323 (Exh.18); Original Receipt dated 26.08.2011 in
respect of Gold Loan Account No.7323 (Exh.19); Office copy of letter
dated 26.08.2011 in respect of Gold Loan Account No.7323 (Exh.20);
Original Cheque dated 02.06.2015 (Exh.21); Original Return Memo
dated 04.06.2015 (Exh.22); Copy of order dated 29.08.2018 (Exh.23);
Office copy of Legal dated 05.06.2015 (Exh.24); Original Postal Receipt
and Postal Acknowledgment (Exh.25); Photocopy of Notice dated
11.06.2015 (Exh.26); Office copy of Legal Demand Notice dated
30.06.2016 (Exh.27); Original Postal Receipt (Exh.28); Original
Returned Envelopes (Exh.29) and Original Chart of Outstanding along
with an Original Statement of Loan Account No.7322 and 7323 for
period from 26.08.2011 to 31.07.2022 (Exh. 30 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 the after sale consideration from mortgaged gold of the
defendant Rs.16,70,000/- is credited on account of the defendant on
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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.15,11,857/- together with further interest. So far as, the interest
on the said amount is concerned, the plaintiff has claimed further
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 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.354 of 2021 is partly decreed with Costs.
2) The defendant does pay an amount of Rs.15,11,857/- 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.
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4) Commercial Suit No.354 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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C. S. No.354 of 2021 -: 9 :- Ex-parte Judgment
“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER.”
UPLOAD DATE: 22.11.2024 NAME OF STENOGRAPHER
TIME: 04.33 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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