Final Order 1

Order Details: Ex-parte Judgement
Pdf Text: 1 Judgment in Commercial Suit No. 273/2021
Lodged on : 11.06.2018
Admitted on : 12.10.2018
Decided on : 23.02.2023
Duration : Y M D
4 8 12
COMMERCIAL SUIT NO. 273 OF 2021
CNR NO : MHCC010069312018
Exh.9
Canara Bank
A Banking Company incorporated under
the Banking Companies (Acquisition and
Transfer of Undertaking) Act, 1970 having
their Head Office at Bangalore – 569 992
and a Branch office at all Saints Home,
54/A, Dockyard Road, Mumbai 400 010,
through its Officer Mr. Nishant Sinha. ...Plaintiff
Versus
M/s. MDS Tours and Travels
Through Proprietor Mr. Santosh Dhondiram Salvi
Having address at 249, Ground floor, Mahatma
Gandhi Nagar, MG Road, Near Shramik Vidya
Peth School, Dharavi, Mumbai 400 017. ...Defendant
Appearance:
Adv. Wasima Kazi i/b. Adv. Fatima Lakdawala for Plaintiff.
Defendant exparte.
CORAM : SHRI. A.S.SALGAR
ADHOC JUDGE, (C.R.NO.31)
DATED :23rd FEBRUARY 2023
J U D G M E N T
(Delivered on : 23.02.2023)
The plaintiff bank has filed the present suit for the recovery
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of the amount of Rs.9,85,661.60ps. from the defendant together with
interest at the rate of 11.95% per annum. The plaintiff also claimed the
relief of perpetual injunction restraining the defendant from selling and
disposing of or creating third party rights in respect of its assets and
properties owned by them.
The brief facts of the plaintiff's case is as under:
2. The plaintiff is a Banking Company, registered under the
Acquisition and Transfer of Undertaking Act, 1970 having its head
office at Bangalore and one of its branch is at Dockyard Road, Mumbai.
The defendant is Tours and Travels company of which Mr. Santosh
Dhodiram Salvi is Proprietor. Defendant is engaged into business of
Tours and Travels Operator. The defendant through its proprietor
approached the plaintiff bank for vehicle loan of
Rs.9,49,000/ and the defendant submitted the Loan Application Form
in the prescribed format to the plaintiff bank. Along with the said Loan
Application Form, the defendant also submitted Proforma Invoice dated
20.05.2015 for a sum of Rs.11,17,571/ issued by M/s. Ritu
Automobiles for purchase of Nissan Sunny XLD 5 Seater Car. After
considering the Loan Application of the defendant, the plaintiff vide
Sanction Letter dated 25.06.2015 sanctioned the loan of Rs. 9,49,000/
to the defendant on terms and conditions. The defendant executed
documents in favour of the plaintiff bank namely Form NF373
Particulars of Vehicle, Deed of Hypothecation, Loan Application and
Interview Cum Appraisal Form for Transport Operators. The defendant
also executed and submitted Letter of Undertaking and agreed to repay
the principal amount together with interest. The defendant also
executed Standing Instruction Form authorizing the plaintiff bank to
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debit the amount from defendant's current account. The defendant
made default in making the payment. In view of continuous breach of
the terms and conditions, the plaintiff was constrained to classify the
account of the defendant as a Non Performing Asset on 30.10.2016 in
accordance with the guidelines issued by the Reserve Bank of India
from time to time. The plaintiff has also issued a legal notice on
07.12.2017 and called upon the defendant to pay an amount of
Rs.8,68,812.60ps. Despite various follow ups, the defendant has been
negligent in repaying the amount due and payable to the plaintiff. The
plaintiff further submitted that the Statement of Account of the
defendant showing amount as are due and outstanding, in respect of
the said Auto loan credit facility availed by the defendant. The
defendant is liable to pay the dues to the plaintiff. Hence, the plaintiff
prayed that the defendant be ordered to pay an amount of
Rs.9,85,661.60ps. to the plaintiff along with interest at the rate of
11.95% per annum from the date of filing of the suit till its realization.
The plaintiff also prayed that the defendant, its servants and agents be
permanently restrained by an order and injunction from selling,
disposing of or creating third party rights in respect of its assets and
properties owned by them.
3. The suit summons was issued to the defendant by way of
substituted service. The Writ of Summons was published in two
newspapers. The defendant was duly served the summons, but the
defendant failed to appear before the Court. Hence, in view of order
dated 04.01.2023, the suit proceeded exparte against the defendant.
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4. In support of the claim, the plaintiff bank has examined its
Senior Manager namely Mr. Vidhadhar Khandait at Exh.5. The plaintiff
also filed on record the documentary evidence along with list Exh.6.
The plaintiff filed letter of authority at Exh.7/1, Application Form for
loans to MICRO and Small enterprises (MSE's) at Exh.7/2, Copy of
Proforma Invoice at Exh.7/3, Copy of Sanction letter at Exh.7/4, Form
NF373 Particulars of Vehicle at Exh. 7/5, Deed of Hypothecation dated
25.06.2015 at Exh.7/6, Loan Application and Interview Cum Appraisal
Form for Transport Operators at Exh.7/7, copy of letter of undertaking
at Exh.7/8, copy of Standing Instruction Undertaking Form at Exh.7/9,
copy of Insurance Policy at Exh.7/10, copy of legal notice dated
07.12.2017 at Exh.7/11, copy of Statement of Account at Exh.7/12,
copy of Bankers Books Evidence act at Exh. 7/13, Certificate under
Section 2A of the amended Banker's Books Evidence Act at Exh. 7/14
and particulars of claim is at Exh.7/15. The evidence closure pursis of
the plaintiff is at Exh.8.
5. After considering the evidence of the plaintiff and pleading
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.
9,85,661.60ps. is outstanding from
the defendant?
In the affirmative.
2) Whether plaintiff is entitled to
recover an amount of Rs.
9,85,661.60ps. from the defendant?
In the affirmative.
At the rate of 10.55% per annum
on the principal amount.
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If yes, at what rate of interest?
3) Whether plaintiff is entitled to
claim relief of perpetual injunction
against the defendant?
In the affirmative
4) What order and decree? Suit is decreed with costs.
R E A S O N S
6. Heard Learned Advocate Wasima Kazi i/b. Adv. Fatima
Lakdawala for the plaintiff at length.
As to point nos. 1 & 2
7. It is the case of the plaintiff that on the request of the
defendant, the plaintiff has sanctioned the loan of Rs.9,49,000/ to the
defendant for purchasing the vehicle and the said loan was granted on
25.06.2015. The defendant executed documents in favour of the
plaintiff at the time of obtaining the loan. The defendant has defaulted
in making the payment under the Vehicle Loan credit facility. According
to the plaintiff, total amount of Rs.9,85,661.60ps. is outstanding from
the defendant. At the outset, it is to be noted that the suit summons was
duly served to the defendant, but the defendant failed to appear before
the Court. The defendant has not filed any Written Statement on record
and the defendant has not denied the averment made by the plaintiff in
the plaint. Therefore, it can be said that the averment made by the
plaintiff in the plaint were deemed to be admitted by the defendant.
8. In support of the pleading, the plaintiff bank has examined
its Senior Manager namely Mr. Vidhadhar Khandait at Exh.5. PW1 has
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deposed that vide application dated 08.06.2015 the defendant through
Mr. Santosh Salvi approached the plaintiff's Mazgaon branch for a
vehicle loan of Rs.9,49,000/. After considering the loan application of
the defendant, the plaintiff has sanctioned the loan of Rs.9,49,000/ to
the defendant upon the terms and conditions stipulated therein. The
plaintiff further deposed that the defendant has executed the loan
documents in favour of the plaintiff namely Form NF373 Particulars of
Vehicle, Deed of Hypothecation, Loan Application and Interview Cum
Appraisal Form for Transport Operators. He further deposed that the
defendant also executed Standing Instruction Undertaking Form
authorizing the plaintiff bank to debit the amount from the defendant's
Current Account. He further deposed that the defendant made default
in making repayments. Therefore, the plaintiff bank has classified the
account of defendant as NPA on 30.10.2017. The plaintiff bank also
issued the notice to the defendant on 07.12.2017. This witness further
deposed that the total amount of Rs. 9,85,661.60ps. is outstanding from
the defendant. The aforesaid oral evidence of the plaintiff is not
subjected to the crossexamination. The oral evidence of the plaintiff is
not challenged by the defendant. The defendant failed to conduct cross
examination of the plaintiff. Therefore, it can be said that the oral
evidence of the plaintiff remained unchallenged. Hence, I have no
reason to disbelieve the version of the plaintiff.
9. The oral evidence of the plaintiff is supported by the
documentary evidence filed at Exh.7/1 to 7/15. The Loan Application
Form at Exh. 7/2 shows that the defendant has applied to the plaintiff
bank for grant of loan for purchasing the vehicle. The said application
bears the signature of the defendant, which is not denied and disputed
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by the defendant. The copy of Sanction letter at Exh.7/4 shows that on
the request of the defendant, the plaintiff bank has sanctioned the loan
to the defendant of Rs.9,49,000/. The terms and conditions were also
mentioned in the said Sanction letter. The said Sanction letter also
bears the signature of the Manager of the bank as well as the signature
of the defendant in the capacity as accepting and agreeing the terms
and conditions of the bank. The plaintiff also filed on record Form NF
373 Particulars of Vehicle at Exh. 7/5. The plaintiff also filed on record
the original Deed of Hypothecation at Exh.7/6 which shows that the
defendant executed the said Deed of Hypothecation in favour of the
plaintiff bank and thereby hypothecated the vehicle in favour of plaintiff
bank. The said Hypothecation Deed also bears the signature of the
defendant. The copy of Letter of Undertaking at Exh.7/8 also shows
that the defendant executed the Letter of Undertaking in favour of the
plaintiff bank. The copy of Standing Instruction Undertaking Form at
Exh.7/9 also shows that the defendant has authorized the plaintiff bank
to deduct the amount from his account. The plaintiff also filed on
record the copy of Statement of Account at Exh.7/12. On perusal of the
same, it appears that the plaintiff bank has maintained the Statement of
Account in the course of business. The said Statement of Account also
shows that an amount of Rs. 9,85,661.60ps. is due from the defendant.
The Aforesaid oral as well as documentary evidence tendered by the
plaintiff was not challenged by the defendant. The documentary
evidence shows that the defendant failed to make payment to the
plaintiff bank. Therefore, the plaintiff bank was constrained to issue a
legal notice to the defendant. The plaintiff bank placed on record the
copy of legal notice at Exh.7/11. The defendant failed to comply the
said notice. Therefore, the plaintiff was constrained to file the present
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suit for the recovery of the amount of Rs. 9,85,661.60ps. from the
defendant. The documentary evidence tendered by the plaintiff shows
that the total amount of Rs. 9,85,661.60ps. is outstanding from the
defendant. The plaintiff has proved his claim. Hence, he is entitled to
recover the said amount from the defendant.
10. So far as rate of interest is concerned, the plaintiff has
claimed interest at the rate of 11.95% per annum with 2% penal
interest from the date of filing of the suit till realization. It appears that
the agreed rate of interest between the parties is at the rate of 10.55%
per annum. In short, the plaintiff bank is entitled to recover an amount
of Rs. 9,85,661.60ps. from the defendant along with interest at the rate
of 10.55% per annum from the date of filing of the suit till realization.
Hence, I answer point no. 1 in the Affirmative and point no. 2
accordingly.
As to point no. 3
11. The plaintiff also prayed that the defendant, its servants
and agents be permanently restrained by an order and injunction from
selling, disposing of or creating third party rights in respect of its assets
and properties owned by them. The plaintiff's witness namely Mr.
Vidhadhar Khandait deposed that the defendants were trying to sell out
property or creating third party interest in the property. This evidence
of the plaintiff is remained unchallenged. Therefore, I have no reason to
disbelieve the evidence of PW1. Hence, the plaintiff is entitled to claim
the relief of perpetual injunction against the defendant from selling or
disposing of or creating third party rights in the property. Hence, I
answer point no. 3 in the affirmative.
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As to point no. 4
12. In view of my finding as to point nos. 1 and 2, the suit is
liable to be decreed with costs. In the result, I answer point no. 3 and
pass the following order :
ORDER
1) Commercial Suit No. 273 of 2021 is decreed with costs.
2) The defendant do pay an amount of Rs.9,85,661.60ps. (Rs.
Nine Lakhs Eighty Five Thousand Six Hundred Sixty One
and Sixty Paise only) to the plaintiff bank along with
interest at the rate of 10.55% per annum on the principal
amount from the date of filing of the suit till realization
within three months from the date of this decree.
3) The defendant or his agent or servant are hereby
permanently restrained from selling, disposing or creating
third party interest in respect of its assets and properties
owned by him.
4) The defendant shall bear the costs of the suit.
5) Court fee, if any, be refunded to the plaintiff as per rule.
6) Decree be drawn up accordingly.
(Judgment pronounced in the open Court).
Dated : 23.02.2023 (A.S. Salgar)
Adhoc Judge,
City Civil Court
Gr. Mumbai.
Dictated on : 23.02.2023
Typed on : 27.02.2023
Signed on : 28.02.2023
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CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER”
UPLOAD DATE TIME NAME OF STENOGRAPHER
28.02.2023 3.00 p.m. Mrs. 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.
23.02.2023
Judgment/order signed by P.O on 28.02.2023
Judgment/order uploaded on 28.02.2023
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