Final Order 1

Order Details: Ex-parte Judgement
Pdf Text: Comm.Suit No. 257/21. 1 Ex-parte Judgment (Exh.22).
MHCC010070732018
Presented on : 13-06-2018
Registered on : 24-08-2018
Decided on : 23-10-2021
Duration : 3 years, 4 months, 10 days
IN THE BOMBAY CITY CIVIL COURT AT BOMBAY.
COMMERCIAL SUIT NO. 257 OF 2021
Exh.22.
Canara Bank, a Banking Company, )
constituted and functioning under the )
provisions of the Banking Companies )
(Acquisition and Transfer of Undertakings) )
Act, 1970, having their Central Office at )
Bangaluru, Pin 560 002, an, Karnataka )
State and a Branch Office at All Saints )
Home Building, 54 A, Dockyard Road, )
Mazagaon, Mumbai 400010 )
The suit is filed by Mr. Nishant Sinha, )
age 25 yrs. )
Probationary Officer & Power of Attorney Holder )...Plaintiff
Versus
1) Mr. Rakesh Suresh Chaudhary )
Prop. of M/s. Rakesh Tours & Travels )
Balaji Apartment, 1st Floor, Room No. 102, )
Shiv Mandir Road, Kisan Nagar No. 03, )
Wagle Estate, Thane (West) – 400 604 )...Defendants
SUIT FOR RECOVERY OF MONEY
CORAM : HIS HONOUR JUDGE SHRI R.R.BHAGWAT.
(C.R.NO.31).
DATE : 23rd OCTOBER, 2021.
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Comm.Suit No. 257/21. 2 Ex-parte Judgment (Exh.22).
Ms. Jyotsna Puthran, Advocate for the plaintiff.
Defendants – (Exparte).
JUDGMENT (EXPARTE)
1. This is the suit for recovery of money.
2. Case of the plaintiff, in brief, is as under :
The plaintiff is a body corporate constituted under
the Banking Companies (Acquisition & Transfer of Undertakings) Act,
1970, having its branch office at Mazagaon. Constituted Attorney
Nishant Sinha filed the suit for the plaintiff bank. On an application
dated 09/07/2015 of the defendant, the plaintiff had sanctioned term
loan of Rs.9,53,000/ to the defendant for purchasing Nissan Sunny
XLD 5 seater car on 15/07/2015. Accordingly, letter of undertaking re
loan / advance was executed on 15/07/2015. The defendant also
executed other documents including Deed of Hypothecation of the
vehicle. Though the loan amount was to be repaid in 60 months, the
defendant committed breach in repayment of the loan amount. Then,
legal notice was issued on 22/05/2018 calling upon the defendant to
pay outstanding amount, but the defendant failed to make payment.
Hence, the plaintiff filed the suit for recovery of outstanding amount of
Rs.8,49,323.85 as on 06/05/2018 with further interest at the rate of
9.70% p.a. with monthly rest plus 2% overdue interest from
07/05/2018 till the date of realization with costs of the suit. He also
sought declaration regarding validity of hypothecation with direction to
sell of the hypothecated vehicle and for applying net sale proceeds
towards payment of the due amount.
3. The defendant is duly served with writ of summons as per
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Comm.Suit No. 257/21. 3 Ex-parte Judgment (Exh.22).
affidavit of service (Exh.4), but he failed to appear and oppose the
claim of the plaintiff. Therefore, I passed the exparte order against him
on 16/09/2021.
4. PW 1 Pramod Singh, Manager of the plaintiff bank deposed
on evidence affidavit (Exh.5) and proved documents filed with list of
documents (Exh.6). Proved documents are at Exh.7 to 20. The plaintiff
closed evidence vide pursis (Exh.21). Heard learned counsel Miss
Jyotsna Puthran for the plaintiff.
5. After considering pleadings of the plaintiff and evidence on
record, following points arose for my determination with my findings
against them with reasons to follow :
SR.NO. POINTS FINDINGS
1. Does the plaintiff prove that he is
entitled to recover amount of
Rs.8,49,323.85 ? If yes, at what rate of
interest ? In the Affirmative.
@ 9.70% p.a. with
monthly rest.
2. Whether the plaintiff is entitled to
declaration that the said vehicle is duly
mortgaged / hypothecated / charged in
favour of the plaintiff for recovery of its
dues and hypothecation is valid,
subsisting and enforceable against the
defendant ?
In the Affirmative.
3. Whether the plaintiff is entitled to the
relief of sale of the said vehicle and for
applying the sale proceeds towards
repayment of the due amount ? In the Affirmative.
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Comm.Suit No. 257/21. 4 Ex-parte Judgment (Exh.22).
4. Whether the plaintiff is entitled to
fasten the liability to pay the decretal
amount upon the defendant and his
firm jointly and severally ? In the Affirmative.
5. What order as to cost ? As per final order.
6. What order and decree ? Suit is partly
decreed.
REASONS
AS TO POINT NOS.1 TO 5 :
6. PW 1 Pramod Singh has specifically stated that the loan
amount enumerated in the plaint was sanctioned for purchasing the
vehicle to the defendant. The said vehicle is also hypothecated as per
Exh.12. As the defendant failed to make payment, legal notice (Exh.13)
was issued and served upon the defendant. Even then, the defendant
neglected to make payment of outstanding loan amount as stated in
statement of account (Exh.18).
7. In short, claim of the plaintiff is proved from oral as well as
documentary evidence on record. Interest rate of 10% is stated in
Exh.12 and the defendant is bound to pay 0.55% above / below the said
interest rate. It means that the defendant is liable to pay interest in the
rage of 9.45% p.a. to 10.55% p.a.. The plaintiff has claimed interest at
the rate of 9.70% p.a. which is appropriate as per Exh.12. Therefore,
there is no hurdle in the way of granting interest as demanded by the
plaintiff. So far as overdue interest is concerned, it does not appear to
be appropriate to grant such interest considering nature of transaction.
The defendant had intended to earn his livelihood by using the said
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Comm.Suit No. 257/21. 5 Ex-parte Judgment (Exh.22).
vehicle purchased by obtaining loan from the plaintiff bank. Therefore,
overdue interest is not granted. As the Deed of Hypothecation is
executed at the time of sanctioning of loan and there is nothing to
question validity of the same, relief of declaration can be granted to the
plaintiff. The defendant as well as his firm are jointly and severally
liable to pay the loan amount. In addition to it, clause (d) in Deed of
Hypothecation (Exh.12) authorizes the plaintiff bank to sell the vehicle
and adjust sale proceeds towards loan repayment. Costs of the suit is
liable to be imposed on the defendants. In the light of above discussion,
I record my findings as to points no.1 to 4 in the affirmative with
interest rate as discussed above. Hence, I pass the following order :
ORDER
1. Commercial Suit No. 257/2021 is partly decreed.
2. The defendant is directed to pay amount of Rs.8,49,323.85
(Rupees Eight Lakhs Fortynine Thousand Three Hundred
Twentythree and Paise Eightyfive Only) to the plaintiff
with interest @ 9.70% p.a. with monthly rest from
07/05/2018 till the date of realization within three months
from the date of decree.
3. It is hereby declared that the said vehicle i.e. Nissan Sunny
XLD 5 seater car having No. MH04GD8888 is duly
hypothecated in favour of the plaintiff for recovery of its
dues and hypothecation of the said vehicle is valid,
subsisting and enforceable against the defendant.
4. The said vehicle i.e. Nissan Sunny XLD 5 seater car having
No. MH04GD8888 shall be sold and sale proceeds shall
be applied / appropriated towards payment of the decretal
amount to the plaintiff.
5. The defendant shall bear the costs of the suit.
6. The defendant and his firm M/s. Rakesh Tours & Travels
are jointly and severally liable to make payment of the
decretal amount to the plaintiff.
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Comm.Suit No. 257/21. 6 Ex-parte Judgment (Exh.22).
7. Decree be drawn up accordingly.
(R.R.BHAGWAT)
Judge,
City Civil & Sessions Court,
(Court Room No.31)
Date : 23/10/2021. Mumbai.
1. Dictated online on : 23/10/2021.
2. Signed on : 23/10/2021.
3. Delivered to Certified :
Copy Section on
“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER”
UPLOAD DATE AND TIME NAME OF STENOGRAPHER
23/10/2021. 4.25 p.m. Miss M.A.Kulkarni.
Name of the Judge (with Court Room no.) HHJ Shri R.R.Bhagwat.
(Court Room No.31).
Date of Pronouncement of Judgment/Order 23/10/2021.
Judgment/Order signed by P.O. on 23/10/2021.
Judgment/Order uploaded on 23/10/2021.
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