Final Order 1

Order Details: Ex-parte Judgement
Pdf Text: 1
MHCC010075382019
Presented on : 19072019
Registered on : 28112019
Decided on : 24032021
Duration : Y01, M08 D05
IN THE COURT OF SESSIONS FOR GREATER BOMBAY
COMMERCIAL SUIT NO.226 OF 2019
Bank of Baroda, a body corporate ]
Constituted under the Banking Companies ]
(Acquisition & Transfer of Undertakings) Act, ]
1970 having its Head Office at Bank of Baroda ]
Corporate Center, C10,'G' block, BandraKurla ]
Complex, Bandra (East), Mumbai400 051 ]
And one of its Branch office amongst others ]
known as situated at as Bank of Baroda, ]
Sion Branch, situated at 43B, Premkunj, ]
Maharani Laxmibai Chowk, Sion East, ]
Mumbai400022, State of Maharashtra, ]
represented by Mr. Anoop Kumar K, ]
Age:38 Yrs, the Chief Manager ]...Plaintiffs
V/s
1. M/s. Shinde Leather Works ]
(Proprietor Mr.Shahji Namdeo Shinde) ]
Room No.10, Sahyadri Chawl, Ambedkar Chowk, ]
Surya Nagar, LBS Marg, Vikhroli West, ]
Mumbai400 079 ]
2. Mr. Shahji Namdeo Shinde ]
(Proprietor of M/s. Shinde Leather Works) ]
Room No.10, Sahyadri Chawl, ]
Ambedkar Chowk, Surya Nagar, ]
LBS Marg, Vikhroli West, Mumbai400 079 ]...Defendants
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APPEARANCE:
Ld. Adv. Mugdha Sawant for plaintiff.
None for defendants.
CORAM : HIS HONOUR ADDL.SESSIONS
JUDGE SHRI. SANJAY N. YADAV
(C.R.No.32).
DATED : 24th March, 2021.
Claim : Suit for recovery of Money.
EXPARTE JUDGMENT
(Dictated in Open Court)
The plaintiff by this suit seeks judgment and decree
directing the defendants to pay to the plaintiffs jointly and severally an
aggregate sum of Rs.4,61,338/(Rupees Four Lakhs Sixty One Thousand
Three Hundred and Thirty Eight Only) as on 06.07.2019 together with
further interest at the rate of 12.30% p.a. overdue with monthly rests
plus 2% Penal Interest from the date of filing of suit till the date of
judgment and further interest at the same rate from the date of
judgment till payment.
2. The facts giving rise to the suit in short can be stated as
follows:
The defendant No.1 is proprietary firm and defendant No.2
is the proprietor of defendant No.1 had approached to the plaintiff for
financial assistance for the purpose of business for loan of Rs.1,50,000/
on or about 25.10.2010. The same was granted by the plaintiff under
Cash Credit Scheme covered under CGFTMSE scheme. The amount was
enhanced to Rs.2,50,000/ and further enhanced to Rs.4,00,000/. The
plaintiff was accordingly disbursed a sum under cash credit facility of
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Rs.4,00,000/. The defendant No.2 is the proprietor of defendant No.1
had executed the following documents:
a) General Undertaking dated 29.10.2010 executed by defendant
No.2 on behalf of defendant No.1
b) Demand Promissory Note dated 29.10.2010 executed by
defendant No.2 on behalf of defendant No.1
c) Letter of General Lien and Set off for borrowing arrangements
from the borrowers dated 29.06.2010 executed by defendant
No.2 on behalf of defendant No.1
d) Agreement of Hypothecation (Goods, Book Debts and other
movables assets to secure multiple facilities) executed by
defendant No.2 on behalf of defendant No.1 dated 29.10.2010
3. The Credit Facility was enhanced by the plaintiff to
Rs.2,50,000/ on or about 11.06.2012. The defendants again had
executed the following documents in favor of plaintiff:
e) Demand Promissory Note dated 12.06.2012 executed by
defendant No.2 on behalf of defendant No.1.
f) Agreement of Hypothecation (Goods, Book Debts and other
movables assets to secure multiple facilities) executed by
defendant No.2 on behalf of defendant No.1 dated 12.06.2012
g) Acknowledgement of Debt by borrower executed by defendant
No.2 on behalf of defendant No.1 dated 30.06.2012
4. Further, Credit Facility was enhanced by the plaintiff on
application of the defendants to Rs.4,00,000/. The defendants had
executed the following documents:
h) Demand Promissory Note dated 19.05.2014 executed by
defendant No.2 on behalf of defendant No.1
i) Unattested Memorandum of Modification of Hypothecation
Agreement executed by the defendant No.2 on behalf of
defendant No.1 dated 19.05.2014
j) Letter of Continuity executed by defendant No.2 on behalf of
defendant No.1 dated 19.05.2014.
5. However, the defendants had failed to repay the amount.
Therefore, the Advocate of the plaintiff issued letter dated 02.02.2019
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to the defendants and called them to repay the loan amount. The
plaintiff, therefore, had instituted the present suit for recovery of sum of
Rs.4,61,338/as on 06.07.2019 together with further interest at the rate
of 12.30% p.a. overdue with monthly rests plus 2% Penal Interest from
the date of filing of suit till the date of judgment and further interest at
the same rate from the date of judgment till payment.
6. The defendants had not appeared in the suit. The suit
proceeded exparte against defendants.
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 of Rs.4,61,338/as
on 06.07.2019 together with further
interest at the rate of 12.30% p.a.
overdue with monthly rests plus 2%
Penal Interest from the date of filing of
suit till the date of judgment and further
interest at the same rate from the date of
judgment till payment?
'In Affirmative'
2 What order and decree? As per final order below.
REASONS
AS TO POINT NO. 1:
8. Heard learned Advocate Mugdha Sawant for the plaintiff.
9. The plaintiff in support of its case had examined Mr. Thiriki
Putul at Exh.09. He had raised all the contentions levelled against
defendant in the plaint. The plaintiff had relied upon following
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documents (Exh.07):
Sr.
No.
Date Particulars Exh.
1 23.11.2013 Copy of Power of Attorney
2 28.10.2010 Original Loan Application cum Sanction
Letter
12
3 29.10.2010 Original General Undertaking 13
4 29.10.2010 Original Demand Promissory Note 14
5 29.06.2010 Original Letter of General Lien and Set
off for borrowing arrangements from the
borrower/s
15
6 29.10.2010 Original Agreement of Hypothecation
(Goods, Books Debts and other movables
assets to secure multiple facilities)
16
7 02.06.2012 Original Loan Application 17
8 11.06.2012 Original Sanction Letter 18
9 12.06.2012 Original Demand Promissory Note 19
10 12.06.2012 Original Agreement of Hypothecation
(Goods, Books Debts and other movables
assets to secure multiple facilities)
20
11 30.06.2012 Original Letter of acknowledgment of
debt by borrower
21
12 12.03.2014 Original Loan Application cum sanction
letter
22
13 19.05.2014 Original Demand Promissory Note 23
14 19.05.2014 Original Unattested memorandum of
modification of hypothecation agreement
24
15 19.05.2014 Original letter of continuity 25
16 23.03.2017 Original letter of acknowledgment of
debt by borrower
26
17 02.02.2019 Original Legal Notice, Postal receipts and
acknowledgment cards
27
18 Statement of Account 28
colly
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19 Particulars of plaintiffs claim against
defendants
29
10. The evidence of the witness for the plaintiff shows that the
defendant No.1, proprietary firm through defendant No.2, proprietor of
defendant No.1 had applied for loan for business purpose. The loan
was granted by the plaintiff of Rs.1,50,000/ under cash credit scheme.
Further was enhanced to Rs.2,50,000/ and further enhanced to
Rs.4,00,000/. The evidence of the plaintiff shows that the following
documents were executed by the defendants for loan of Rs.1,50,000/.
a) General Undertaking dated 29.10.2010 executed by defendant
No.2 on behalf of defendant No.1 (Exh.13)
b) Demand Promissory Note dated 29.10.2010 executed by
defendant No.2 on behalf of defendant No.1 (Exh.14)
c) Letter of General Lien and Set off for borrowing arrangements
from the borrowers dated 29.06.2010 executed by defendant
No.2 on behalf of defendant No.1 (Exh.15)
d) Agreement of Hypothecation (Goods, Book Debts and other
movables assets to secure multiple facilities) executed by
defendant No.2 on behalf of defendant No.1 dated 29.10.2010
(Exh.16)
11. The following documents were executed by the defendants
to the plaintiff for loan of Rs.2,50,000/
e) Demand Promissory Note dated 12.06.2012 executed by
defendant No.2 on behalf of defendant No.1 (Exh.19)
f) Agreement of Hypothecation (Goods, Book Debts and other
movables assets to secure multiple facilities) executed by
defendant No.2 on behalf of defendant No.1 dated 12.06.2012
(Exh.20)
g) Acknowledgement of Debt by borrower executed by defendant
No.2 on behalf of defendant No.1 dated 30.06.2012 (Exh.21)
12. Further, the following documents were executed by the
defendants to the plaintiff for loan of Rs.4,00,000/.
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h) Demand Promissory Note dated 19.05.2014 executed by
defendant No.2 on behalf of defendant No.1 (Exh.23)
i) Unattested Memorandum of Modification of Hypothecation
Agreement executed by defendant No.2 on behalf of defendant
No.1 dated 19.05.2014 (Exh.24)
j) Letter of Continuity executed by defendant No.2 on behalf of
defendant No.1 dated 19.05.2014 (Exh.25)
13. The evidence further shows that after receipt of amount,
the amount was not paid by the defendants. It is the evidence of the
plaintiff that inspite of letter dated 02.02.2019 (Exh.27), the amount is
not paid by the defendants. The evidence of the witness for the plaintiff
shows that the plaintiff had claimed amount of Rs.4,61,338/as on
06.07.2019 together with further interest at the rate of 12.30% p.a.
overdue with monthly rests plus 2% Penal Interest from the date of
filing of suit till the date of judgment and further interest at the same
rate from the date of judgment till payment.
14. The defendants had not appeared in the suit nor had
challenged the contentions raised by the plaintiff in the plaint. The
evidence of the plaintiff have gone unchallenged. It therefore has to be
inferred that the defendants has no ground to contest the allegations
made by the plaintiff in the plaint. The evidence of the plaintiff,
therefore, have gone unchallenged.
15. The question which now needs to be considered as the rate
of interest to be charged on the principal amount of Rs.4,00,000/ from
the date of suit till its realization.
Considering that the transaction is commercial, it would be
appropriate to direct the defendants to pay to the plaintiff a sum of
Rs.4,61,338/. The defendants further be directed to pay to the plaintiff,
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the interest at the rate of 10% per annum on the principal amount of
Rs.4,00,000/ 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 defendants are directed to pay to the plaintiff a sum of
Rs.4,61,338/ (Rupees Four Lakhs Sixty One Thousand Three
Hundred Thirty Eight Only). The defendants are further directed to
pay to the plaintiff, the interest at the rate of 10% per annum on the
principal amount of Rs.4,00,000/ (Rupees Four 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:24.03.2021 Gr.Bombay at Mumbai.
Dictated on : 24.03.2021
Transcribed on : 25.03.2021
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
24.03.2021
Judgment/order signed by P.O. on 06.04.2021
Judgment/order uploaded on 07.04.2021
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