Final Order 1

Order Details: Ex-parte Judgement
Pdf Text: 1 Commercial Suit No. 215/2021
Lodged on : 08.06.2018
Admitted on : 18.09.2018
Decided on : 28.07.2022
Duration : Y M D
4 1 20
COMMERCIAL SUIT NO. 215 of 2021
(OLD S.C. SUIT NO. 2335 OF 2018)
CNR NO. : MHCC010069202018
Exh.23
Bank of India, A body corporate
constituted under the Banking Companies
(Acquisition & Transfer of Undertakings)
Act, 1970, having their Head Office at Star
House, C5, GBlock, Bandra Kurla Complex,
Bandra (E), Mumbai 400 051 and others
at 211, Oriental Bhavan, Sherif Devji Street,
Mumbai 400 003 known as J J Flyover Branch ...Plaintiff
Versus
1. Mr. Abhay Ramchandra Sarang
Age : 41 years, Room No. 22, Chawl No. 7,
Omkareshwar Chawl, Ganpati Mandir
Road, Near Krishna Kunj, Titwala (E),
Thane – 421605.
2. Mr. Rajendra Chabu Jeenzorday
104, Amber Apartment, Sec 11, Plot 706,
Juhugaon, Navi Mumbai – 400703. ….Defendants
Appearance:
Adv. Mr. Rony for Plaintiff.
Defendants exparte.
-- 1 of 10 --
2 Commercial Suit No. 215/2021
CORAM : SHRI. A.S.SALGAR
ADHOC JUDGE,
(C.R.NO.31)
DATED : 28th JULY 2022
J U D G M E N T
(Delivered on : 28.07.2022)
The plaintiff has filed the suit for recovery of the amount of
Rs.8,30,620/ along with interest at the rate of 9.90% per annum.
Initially, the suit came to be registered as S.C. Suit No. 2335 of 2018.
After scrutiny of the papers, it came to be registered as Commercial Suit
No. 215 of 2021.
2. Brief facts of the plaintiff's case is as under:
The plaintiff is a Banking Company, governed by Banking
Regulation Act, carrying on banking business. The defendant no. 1 is
the borrower who availed loan from the plaintiff and the defendant no.
2 is the guarantor who has guaranteed due repayment of loan by the
defendant no. 1. The defendant no. 1 along with defendant no. 2
approached the plaintiff for financial assistance to purchase a new four
wheeler car. The defendant no. 1 represented that he was working with
one M/s. Shivangee Pharma & Agro Pvt. Ltd. He submitted KYC
documents, IT returns for the period from 2012 to 2015. He also
submitted proforma invoice/quotation for the vehicle from M/s. Auto
Mark Motors, the authorised dealer of cars having office at Andheri
West. The plaintiff considering his request, representations and
assurances to repay the same, sanctioned an amount of Rs.6,96,532/
vide Sanction Letter dated 10.12.2015. The defendant no. 1 was to
repay the entire loan amount in 84 equal monthly installments of
Rs. 11,618/ each. The defendant no. 1 had to pay interest at the rate of
-- 2 of 10 --
3 Commercial Suit No. 215/2021
0.45% over base rate minimum 10.15% per annum. In consideration of
granting the said amount, the defendant no. 1 has executed a Demand
Promissory Note dated 10.12.2015 in favour of the plaintiff promising
to pay a sum of Rs. 6,96,532/ with interest at the rate of 0.45% over
base rate i.e. @ 10.15% per annum. The defendant no. 1 also executed
Agreement of Hypothecation for Consumer Loan in respect of vehicle
dated 10.12.2015 and hypothecated the vehicle. The defendant no. 1
also executed Multipurpose document in Form L516 dated 10.12.2015.
The defendant no. 2 executed guarantee Agreement dated 10.12.2015
guaranteeing due repayment of loan.
3. The plaintiff submits that the loan amount was deposited
through RTGS to the account of the dealer M/s. Automark Motors in the
Account No. 024702000003039 maintained with Indian Overseas Bank.
The defendant no. 1 was asked to bring the vehicle for inspection
however the defendant no. 1 did not turn up. After the loan was
disbursed by the bank, the defendant no. 1 made certain payments
against the loan. As there was no payment from March, 2016, the
plaintiff contacted the defendant no. 1 and he assured to make
payment. However, there was no payment at all. Therefore, the plaintiff
approached the dealer M/s. Automark Motors and upon inquiry it was
revealed that the defendant no. 1 had not purchased any vehicle from
them and the documents produced by him were fake and fabricated.
Therefore, the plaintiff lodged complaint dated 25.07.2016 with
Pydhonie Police Station. In view of the failure and neglect of the
defendant no. 1, the account came to be classified as NPA with effect
from 30.09.2016. Thereafter, Advocate for the plaintiff addressed a
Legal Notice dated 09.02.2018 to the defendants calling upon them to
make payment. The said notice was sent by Registered Post with A.D.
-- 3 of 10 --
4 Commercial Suit No. 215/2021
The defendants did not clear the outstanding amount for long time
inspite of repetitive requests. The plaintiff bank is entitled to recover the
outstanding amount of Rs.8,30,620/ from the defendants along with
interest at the rate of 9.90% per annum. Hence, the plaintiff filed the
present suit against the defendants and prayed that the defendants be
ordered to pay a sum of Rs.8,30,620/ along with interest at the rate of
9.90% per annum to the plaintiff.
4. The writ of summons was served upon the defendants
through paper publication. Both the defendants failed to appear before
the Court. Hence, as per order dated 14.10.2021, the suit was
proceeded exparte against the defendant nos. 1 and 2.
5. 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 the plaintiff proves that
an amount of Rs.8,30,620/ is
outstanding from the defendants?
In the affirmative.
2) Whether the plaintiff is entitled
to recover an amount of
Rs.8,30,620/ from the defendants?
If yes, at what rate of interest ?
In the affirmative.
At the rate of 10.15% per annum.
3) What order and decree? Suit is decreed with costs.
R E A S O N S
6. In support of the pleading, the plaintiff bank examined its
chief manager namely Jyoti Ranjan Mishra at Exh.10. The plaintiff also
filed on record the documentary evidence i.e. Original Loan Application
-- 4 of 10 --
5 Commercial Suit No. 215/2021
(Exh.12), Original Sanction Letter (Exh.13), Original Demand
Promissory Note (Exh.14), Original Hypothecationcumloan Agreement
(Exh.15), Multipurpose Document (Exh.16), Original Guarantee
Agreement (Exh.17), Copy of complaint dated 25.07.2016 (Exh.18)
Copy of legal notice dated 09.02.2018 (Exh.19), Particulars of Claim
(Exh.20), Authority Letter (Exh.21) and Evidence Closure Pursis filed by
the plaintiff is at Exh.22.
7. Heard Learned Advocate Mr. Rony for the Plaintiff at
length. The Learned advocate for the plaintiff referred the contents in
the plaint and pointed out the documents in the course of argument.
The plaintiff by adducing oral and documentary evidence proved that
an amount of Rs.8,30,620/ is outstanding from the defendants. Hence,
he prayed that the suit of the plaintiff be decreed with costs.
As to Point Nos.1 to 3
8. According to the plaintiff, on the request of the defendants,
the plaintiff bank sanctioned loan of Rs. 6,96,532/ to the defendants
on 10.12.2015 and the defendants executed various documents i.e.
Loan Application Form and Deed of Hypothecation and Guarantee
Agreement. The defendants failed to repay the loan installment.
According to the plaintiff, the amount of Rs.8,30,620/ is outstanding
from the defendants. The present suit is not contested by the
defendants. The defendants failed to appear before the Court.
Therefore, the suit proceeded Exparte against the defendants. As per
the pleading of the plaintiff, the loan application of the defendants was
sanctioned on 10.12.2015 as per Exh.13. Transaction took place on
10.12.2015. Suit was filed 08.06.2018. In my view suit is filed within
three years from the date of transaction.
-- 5 of 10 --
6 Commercial Suit No. 215/2021
9. According to the plaintiff, on the request of the defendants,
the plaintiff bank sanctioned loan of Rs.6,96,532/ to the defendants.
The defendants executed Deed of Hypothecation in favour of the
plaintiff bank and defendant no. 2 executed Deed of Guarantee in
favour of the plaintiff bank and they agreed to pay the loan amount but
the defendants failed to repay the loan installment. At the outset, it is to
be noted that the defendants did not appear before the Court nor filed
Written Statement to the suit. The averments made in the plaint were
not denied or disputed by the defendants. In other words, the inference
can be drawn that the defendants were deemed to have admitted the
averments made in the plaint.
10. In support of the pleading, the plaintiff bank examined the
Chief Manager of bank at Exh.10. P.W.1 Jyoti Mishra deposed that the
plaintiff bank granted term loan (car loan) of Rs.6,96,532/ in favour of
the defendant no. 1. The plaintiff bank vide sanction letter dated
10.12.2015 granted loan to the defendants. The defendants have agreed
the terms and conditions in the loan agreement. The defendants also
executed Deed of Hypothecation. He also deposed that Guarantee
Agreement dated 10.12.2015 was executed by the defendant no. 2 in
favour of the plaintiff bank. He also deposed about the execution of the
documents by the defendants in favour of the plaintiff bank at Exhibit
12 to 22. The defendants failed to repay the loan installment and the
defendants have become willful defaulter of the loan. As a result of
default of the defendants to repay the loan installment, the plaintiff
classified the said account of the defendants as Non Performing Asset
on 30.09.2016 and the plaintiff bank issued notice to the defendants on
09.02.2018. The aforesaid evidence of the plaintiff is not subjected to
cross examination. The defendants failed to conduct the cross
-- 6 of 10 --
7 Commercial Suit No. 215/2021
examination of the plaintiff's witness. Therefore, the evidence adduced
by the plaintiff is remained unchallenged. Therefore, I have no reason
to disbelieve the evidence of the plaintiff.
11. The oral evidence of the plaintiff is supported by
documentary evidence. The loan application at Exh.12 shows that the
defendant no. 1 has applied to the plaintiff bank for car loan of Rs.
7,00,000/ for purchasing and agreed to repay the loan amount with 84
equal monthly installments of Rs.11,618/ each. The said loan
application form bears the signature of the defendant no. 1. The
sanction letter at Exh.13 also shows that the plaintiff bank has
considered the request of the defendants and granted loan of
Rs.6,96,532/ to the defendants with terms and conditions as stipulated
therein. The Sanction Letter bears the signature of Chief Manager of the
Bank. The Deed of Hypothecation at Exh.15 also shows that the
defendants executed the Deed of Hypothecation in favour of the
plaintiff bank and agreed to repay the loan amount of Rs.6,96,532/ by
84 equal monthly installments along with interest. The Guarantee
Agreement at Exh.17 shows that the defendant no. 2 has executed the
said document in favour of the plaintiff bank and the guarantor agrees
to make repayment of the loan amount. The copy of Statement of
Account at Exh.20 also shows that the amount of Rs. 6,99,919.28/ is
outstanding by way of principal amount on 05.05.2018. So also amount
of Rs.1,30,701.29 is due from the defendant towards interest from
30.09.2016 to 04.05.2018. Thus, total amount of Rs.8,30,620/ is
outstanding from the defendants. The aforesaid oral and documentary
evidence is not challenged by the defendants. Therefore, the said
documentary evidence tendered by the plaintiff cannot be disbelieved.
-- 7 of 10 --
8 Commercial Suit No. 215/2021
12. The plaintiff by adducing oral and documentary evidence
sufficiently proved that the plaintiff bank has sanctioned loan of
Rs.6,96,532/ to the defendants on the request of the defendant no. 1.
The documentary evidence on record shows that in consideration of the
said car loan, the defendants have executed the Deed of Hypothecation
in favour of the plaintiff bank and agreed to repay the loan amount. The
Deed of Guarantee also shows that the defendant no. 2 executed the
said Guarantee Agreement in favour of the plaintiff bank and agreed to
repay the loan amount in case of any default made by the borrower.
The oral and documentary evidence shows that the defendants failed to
repay the loan installment as agreed and has become willful defaulter of
the loan. Therefore, the plaintiff bank was constrained to issue demand
notice to the defendants. The demand notice was issued to the
defendants as per Exh.19. No reply was sent to the said notice. Adverse
inference needs to be drawn against the defendants that as the amount
was outstanding from the defendants, he has not replied to the notice.
13. In the present case, the oral and documentary evidence
tendered by the plaintiff is remained unchallenged. The defendants
failed to file Written Statement. Therefore, considering the oral and
documentary evidence, I am of the view that the plaintiff bank has
sufficiently proved that the amount of Rs.8,30,620/ is outstanding
from the defendants. Therefore, the plaintiff bank is entitled to recover
the amount of Rs. 8,30,620/ from the defendants.
14. The plaintiff bank has claimed interest at the rate of 9.90%
per annum. The copy of sanction letter at Exh.13 as well as Deed of
Hypothecation Exh.15 also shows that the defendants agreed to pay
interest on the loan at the rate of 10.15% per annum. As defendants
have agreed to pay interest at the rate of 10.15% per annum, therefore
-- 8 of 10 --
9 Commercial Suit No. 215/2021
the plaintiff bank is entitled to recover outstanding amount of Rs.
8,30,620/ along with future interest at the rate of 10.15% per annum
from the date of filling of the suit till realization. Hence, the claim of the
plaintiff needs to be allowed. Therefore, my finding as to point Nos.1
and 2 in the affirmative and point No.3 accordingly. Hence, I pass the
following order :
ORDER
1) Commercial Suit No. 215 of 2021 is decreed with costs.
2) The defendants do pay an amount of Rs.8,30,620/ (Rs.
Eight Lakh Thirty Thousand Six Hundred and Twenty
Only) to the plaintiff along with interest at the rate of
10.15% per annum from the date of filing of the suit till
realization within 3 months from the date of this
decree.
3) Defendants shall bear the costs of the suit.
4) Court fee, if any, be refunded to the plaintiff as per rule.
5) Decree be drawn up accordingly.
(Judgment pronounced in the open Court)
Dated : 28.07.2022 (A.S. Salgar)
Adhoc Judge,
City Civil Court
Gr. Mumbai.
Dictated on : 28.07.2022
Typed on : 29.07.2022 & 30.07.2022
-- 9 of 10 --
10 Commercial Suit No. 215/2021
CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER”
UPLOAD DATE TIME NAME OF STENOGRAPHER
01.08.2022 11.40 a.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.
28.07.2022
Judgment/order signed by P.O on 30.07.2022
Judgment/order uploaded on 01.08.2022
-- 10 of 10 --