Final Order 1

Order Details: Ex-parte Judgement
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MHCC010065392019
Presented on : 27062019
Registered on : 27082019
Decided on : 26032021
Duration : Y01 M8 D29
IN THE COURT OF SESSIONS FOR GREATER BOMBAY
COMMERCIAL SUIT NO. 96 OF 2019
Tamilnad Mercantile Bank Ltd, a ]
Banking Company incorporated under the ]
Companies Act 1956, having its Registered ]
Office at 57 V.E. Road, Thoothukudi 628002 ]
and a branch amongst others at Plot No.43, ]
Vandana, Scheme No.6, Sion, Mumbai 400022 ]...Plaintiff
V/s
Mr. R. Vetrivel Nadar ]
Sole Prop. of M/s. Jyothi Farsan ]
having address at B11 Dhorwada, M.P. Nagar, ]
Opp. Siva Tailor, Dharavi, Mumbai 400017 ]...Defendant
APPEARANCE:
Ld. Adv. Sameer Shaikh i/b/ M/s. Consulta Juris for plaintiff.
None for defendant.
CORAM : HIS HONOUR ADDL.SESSIONS
JUDGE SHRI. SANJAY N. YADAV
(C.R.No.32).
DATED : 26th March, 2021.
Claim : Suit for recovery of Money.
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EXPARTE JUDGMENT
(Dictated in Open Court)
The plaintiff by this suit seeks judgment and decree
directing the defendant to pay to the plaintiff, a sum of Rs.7,35,077.37
(Rupees Seven Lakhs Thirty Five Thousand Seventy Seven and Thirty
Seven Paise Only) i.e. Rs.16,424.00 under Car Loan Account
No.168700850100063 and Rs.7,18,653.37 under Overdraft Account
No.168700050900134 with further interest at the rate of 13% p.a. [for
Car Loan] and at the rate of 14% [for Overdraft Facility] from the date
of filing of the suit till its realization.
2. The facts giving rise to the suit in short can be stated as
follows:
The defendant had availed for the plaintiff a car loan
facility and overdraft facility of M/s. Jyoti Farsan. The loan of
Rs.6,00,000/ (Rupees Six Lakhs Only) was sanctioned by the plaintiff
for car. The defendant had executed following documents:
(a) Articles of Agreement dated 22.10.2011
(b) Hire Purchase Agreement dated 22.10.2011
(c) Deed of Hypothecation dated 22.10.2011
(d) Demand Promissory Note dated 22.10.2011
(e) Consent clause dated 22.10.2011
(f) Letter of authorization to debit margin money
(g) Requisition letter to avail credit facility dated 22.10.2011
(h) Letter of undertaking regarding payment of installment dated
22.10.2011
3. In the year 2013, the defendant had requested to the
plaintiff for overdraft facility and loan was sanctioned by the plaintiff to
the tune of Rs.3,00,000/ (Rupees Three Lakhs Only). The following
documents were executed by the defendant:
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(a) Demand Promissory Note dated 11.10.2013 for Rs.3,00,000/
(b) DPN delivery letter dated 11.10.2013
(c) Sole Proprietary Declaration Form dated 11.10.2013
(d) Agreement for demand cash credit on the hypothecation of
movable properties, dated 11.10.2013
(e)Letter of Hypothecation of Book debtsLoans dated 11.10.13
(f) Power of attorney to bank for book debts dated 11.10.2013
(g) Free access letter dated 11.10.2013
(h) CIBIL Declaration dated 11.10.2013
4. It is stated by the plaintiff that the Overdraft Facility was
renewed and enhanced to Rs.5,00,000/ (Rupees Five Lakhs Only).
Further, the documents were executed by the defendant:
(a) Demand Promissory Note dated 07.11.2014
(b) Supplement Agreement for Hypothecation of stocks dated
07.11.2014
(c) Supplement Agreement for Hypothecation of book debts
dated 07.11.2014
(d) Power of Attorney for Book debts dated 07.11.2014
5. The defendant had executed a Revival Letter in respect of
car loan as well as overdraft facility. The defendant was irregular in
repayment of the loan amount. The defendant also had executed
Revival Letter on 16.10.2017 for car loan.
The plaintiff, therefore, had instituted the present suit for
recovery of amount of Rs.7,35,077.37 i.e. Rs.16,424.00 under Car Loan
Account No.168700850100063 and Rs.7,18,653.37 under Overdraft
Account No.168700050900134 with further interest at the rate of 13%
p.a. [for Car Loan] and at the rate of 14% [for Overdraft Facility] from
the date of filing of the suit till its realization.
6. The defendant had not appeared in the suit. The suit
proceeded exparte against defendant.
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7. The following points arise for my determination with my
findings thereon and the reasons to follow :
SR.
NO. POINTS FINDINGS
1 Whether the plaintiff is entitled for
recovery amount of Rs.7,35,077.37 i.e.
Rs.16,424.00 under Car Loan Account
No.168700850100063 and
Rs.7,18,653.37
under Overdraft Account
No.168700050900134 with further
interest at the rate of 13% p.a. [for Car
Loan] and at the rate of 14% [for
Overdraft Facility] from the date of filing
of the suit till its realization?
'In Affirmative'
2 What order and decree? As per final order below.
REASONS
AS TO POINT NO. 1:
8. Heard learned Advocate Sameer Shaikh for the plaintiff.
9. The plaintiff in support of its case had examined B.
Thirupati, s/o Thiru I.C. Balasundaram, Assistant Manager of the Bank,
at Exh.03. The evidence of the PW No.1 B. Thirupati is in lines to the
contentions of the plaintiff in the plaint. The plaintiff had relied upon
following documents (Exh.04):
Sr.
No.
Particulars Exh.
1 Copy of Power of Attorney dated 20.01.2012 5
colly
2 Original office copy of Sanction letter dated
11.10.2013
6
colly
3 Original demand promissory note dated 11.10.2013 7
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for Rs.3,00,000/ and DPN delivery letter dated
11.10.2013
4 Original Sole proprietary declaration form dated
11.10.2013
8
5 Original agreement for demand cash credit on the
hypothecation of movable properties, dated
11.10.2013
9
colly
6 Original letter of hypothecation of book debtsloans
dated 11.10.2013
10
colly
7 Original Power of attorney to bank dated
11.10.2013
11
8 Original Free access letter dated 11.10.2013 12
9 Original CIBIL declaration dated 11.10.2013 13
10 Original office copy of sanction letter dated
31.10.2014
14
colly
11 Original demand promissory note dated 07.11.2014
and DPN delivery letter dated 07.11.2014
15
12 Original supplemental agreement for hypothecation
of stocks dated 07.11.2014
16
colly
13 Original Supplemental Agreement for
hypothecation of book debts dated 07.11.2014
17
14 Original Power of Attorney for book debts dated
7.11.2014
18
15 Original office copy of sanction letter dated
14.10.2015
19
colly
16 Original Revival letter dated 14.10.2015 20
17 Original letter dated 2.6.2017 from plaintiff
addressed to defendant
21
colly
18 Statement of account 22
colly
19 Certificates under Banker's Book of Evidence Act 23
colly
10. It is the evidence of the witness for the plaintiff PW No.1 B.
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Thirupati that the car loan is recovered from the defendant. The loan
on the overdraft facility is not repaid by the defendant. The evidence of
PW No.1 shows that following documents were executed time and
again by the defendant.
(a) Demand Promissory Note dated 11.10.2013 for Rs.3,00,000/
and DPN delivery letter dated 11.10.2013 (Exh.7)
(b) Sole Proprietary Declaration Form dated 11.10.2013 (Exh.8)
(c) Agreement for demand cash credit on the hypothecation of
movable properties, dated 11.10.2013 (Exh.9 colly)
(d)Letter of Hypothecation of Book debtsLoans dated
11.10.2013 (Exh.10 colly)
(e) Power of attorney to bank for book debts dated 11.10.2013
(Exh.11)
(f) Free access letter dated 11.10.2013 (Exh.12)
(g) CIBIL Declaration dated 11.10.2013 (Exh.13)
11. Further, the following documents were executed by the
defendant for overdraft facility.
(a) Demand Promissory Note dated 07.11.2014 (Exh.15)
(b) Supplement Agreement for Hypothecation of stocks dated
07.11.2014 (Exh.16 colly)
(c) Supplement Agreement for Hypothecation of book debts
dated 07.11.2014 (Exh.17)
(d) Power of Attorney for Book debts dated 07.11.2014 (Exh.18)
12. The defendant was irregular in repayment of loan amount.
The plaintiff, therefore, had prayed for recovery of amount of
Rs.7,35,077.37 i.e. Rs.16,424.00 under Car Loan Account
No.168700850100063 and Rs.7,18,653.37 under Overdraft Account
No.168700050900134 with further interest at the rate of 13% p.a. [for
Car Loan] and at the rate of 14% [for Overdraft Facility] from the date
of filing of the suit till its realization.
13. The defendant had not appeared in the suit and had not
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contested the suit. The contentions of the plaintiff in the plaint have
gone unchangelled. The absence of the defendant inspite of suit
summons leads to an inference that the defendant has no case to put
forth against the contentions of the plaintiff in the plaint.
The plaintiff is entitled for recovery of amount of overdraft
facility i.e. Overdraft Account No.168700050900134, Rs.7,18,653.37
i.e. (Inclusive of principal amount plus agreed interest). The plaintiff is
further entitled for the interest at the rate of 14% per annum on the
principal amount of Rs.5,00,000/(Rupees Five Lakhs Only) from the
date of filing of suit till its realization.
Hence, I answered point No. 1 “in Affirmative.” In the
result, following order is passed.
ORDER
1. Suit is decreed with costs.
2. The defendant is directed to pay to the plaintiff the amount of
Overdraft Account No.168700050900134, Rs.7,18,653.37 (Rupees
Seven Lakhs Eighteen Thousand Six Hundred and Fifty Three and
Thirty Seven Paise Only) i.e. (Inclusive of principal amount plus
agreed interest). The defendant is further directed to pay to the
plaintiff the interest at the rate of 14% per annum on the principal
amount of Rs.5,00,000/(Rupees Five Lakhs Only) from the date of
filing of suit till its realization.
3. Decree be drawn up accordingly.
(SANJAY N. YADAV)
Additional Sessions Judge
Date:26.03.2021 Gr.Bombay at Mumbai.
Dictated on : 26.03.2021
Transcribed on : 03.04.2021
Signed by H.H.J.on : 06.04.2021
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“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER”
07.04.2021 at 4.10 p.m.
UPLOAD DATE AND TIME
(Mrs. K.S.Bhosale)
NAME OF STENOGRAPHER
Name of the Judge HHJ SHRI S.N.Yadav
(COURT ROOM NO.32)
Date of pronouncement of
judgment/order
26.03.2021
Judgment/order signed by P.O. on 06.04.2021
Judgment/order uploaded on 07.04.2021
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