Final Order 1

Order Details: Ex-parte Judgement
Pdf Text: Comm.Suit No. 265/21. 1 Ex-parte Judgment (Exh.20).
MHCC010075582018
Presented on : 25-06-2018
Registered on : 10-09-2018
Decided on : 19-01-2022
Duration : 3 years, 6 months, 24 days
IN THE BOMBAY CITY CIVIL COURT AT BOMBAY.
COMMERCIAL SUIT NO. 265 OF 2021
(OLD SHORT CAUSE SUIT NO. 2464 OF 2018)
Exh.20.
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 Branch )
Office at All Saints Home Building, 54 A, )
Dockyard Road, Mazgaon, Mumbai – 400 0010 )
Through Officer Mr. Nishant Sinha )...Plaintiff
Versus
M/s. Malhar Enterprises )
Through Prop Mr. Hemnat Dilip Abhavane )
Having Address at, 59/1, Shankar Nagar Nagrik Soc. )
Shnakar Deol, R.C.Marg, Chembur, Mumbai 4000 074 )...Defendant
SUIT FOR RECOVERY OF MONEY
CORAM : HIS HONOUR JUDGE SHRI R.R.BHAGWAT.
(COURT ROOM NO.31).
DATE : 19th JANUARY, 2022.
Ms. Snepy Ambawat h/f Adv. Ms. Fatima Lakdawala, Advocate for the
plaintiff.
Defendant – (Exparte).
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Comm.Suit No. 265/21. 2 Ex-parte Judgment (Exh.20).
JUDGMENT (EXPARTE)
1. This is 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. Defendant is a
proprietary concern represented by proprietor Hemant Abhavane. On
an application dated 07/09/2015 of the defendant, the plaintiff had
sanctioned term loan of Rs.7,67,000/ under Canara MSE Pragati
Scheme to the defendant for purchasing Toyota Etios car. Accordingly,
sanction letter was issued. The defendant also executed other
documents including Deed of Hypothecation of the vehicle. Though the
loan amount was to be repaid with monthly installments of Rs.16,512/
within period of 60 months with interest at the rate of 10.05% p.a., the
defendant committed breach in repayment of the loan amount.
Account of the defendant turned NPA on 30/07/2016. Then, legal
notice was issued on 26/09/2017 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.6,91,918/ as on 21/06/2018 with further interest at the rate of
10.05% p.a. plus 2% penal interest with monthly rests from the date of
filing of the suit till the date of realization with costs of the suit. He also
made many other prayers like disclosure of properties owned by the
defendant, attachment and sale of those properties for appropriating the
same in the account of the defendant.
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Comm.Suit No. 265/21. 3 Ex-parte Judgment (Exh.20).
3. The defendant is duly served with writ of summons as per
affidavit of service (Exh.4), but he failed to appear and oppose the
claim of the plaintiff. Therefore, my learned predecessor passed the ex
parte order against him on 09/08/2019.
4. PW 1 Pramod Kumar Singh, Officer 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 18. The
plaintiff closed evidence vide pursis (Exh.19). Heard learned counsel
Miss Snepy Ambawat 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.6,91,918/ from the defendant ? If
yes, at what rate of interest ? In the Affirmative.
@ 10.05% p.a. with
monthly rest.
2. Does the plaintiff prove that he is
entitled to the relief of disclosure of
properties owned by the defendant,
attachment and sale of those properties
for appropriating the same in the
account of the defendant ? In the Negative.
3. What order as to costs ? As per final order.
4. What order and decree ? Suit is partly
decreed.
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Comm.Suit No. 265/21. 4 Ex-parte Judgment (Exh.20).
REASONS
AS TO POINT NOS.1 TO 3 :
6. PW 1 Pramod Kumar 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. The defendant failed to make payment. The defendant
neglected to make payment of outstanding loan amount as stated in
statement of account (Exh.16). In short, claim of the plaintiff is proved
from oral as well as documentary evidence on record.
7. So far as interest rate is concerned, the plaintiff has claimed
interest within the range of interest as per terms of the agreement with
the defendant. There is no hurdle in the way of granting interest as
demanded by the plaintiff. It does not appear to be appropriate to grant
2% penal interest because the defendant had obtained loan for
purchasing the vehicle in order to earn his livelihood. So far as other
reliefs claimed by the plaintiff are concerned, they are mostly related to
execution of decree. The plaintiff can resort all available remedies
under Order XXI of the CPC in the course of execution. Costs of the suit
is liable to be imposed on the defendants. In the light of above
discussion, I record my finding as to point no.1 in the affirmative and as
to point no.2 in the negative. Hence, I pass the following order :
ORDER
1. Commercial Suit No. 265/2021 is partly decreed.
2. The defendant is directed to pay amount of Rs.6,91,918/
(Rupees Six Lakhs Ninetyone Thousand Nine Hundred
Eighteen Only) to the plaintiff with interest @ 10.05% p.a.
with monthly rest from the date of the suit till the date of
realization within three months from the date of decree.
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Comm.Suit No. 265/21. 5 Ex-parte Judgment (Exh.20).
3. The defendant shall bear the costs of the suit.
4. Decree be drawn up accordingly.
(R.R.BHAGWAT)
Judge,
City Civil & Sessions Court,
(Court Room No.31)
Date : 19/01/2022. Mumbai.
1. Dictated online on : 19/01/2022.
2. Signed on : 19/01/2022.
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
19/01/2022. 4.00 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 19/01/2022.
Judgment/Order signed by P.O. on 19/01/2022.
Judgment/Order uploaded on 19/01/2022.
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