Final Order 2

Order Details: Ex-parte Judgement
Pdf Text: Comm.Suit No. 261/21. 1 Ex-parte Judgment.
MHCC010075602018
Presented on : 25-06-2018
Registered on : 05-09-2018
Decided on : 24-08-2021
Duration : 3 years, 1 months, 29 days
IN THE BOMBAY CITY CIVIL COURT AT BOMBAY.
COMMERCIAL SUIT NO. 261 OF 2021
Exh.21.
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, Mumbai400 0010 )
Through Officer Mr. Nishant Sinha )...Plaintiff
Versus
M/s. Laxmi Travels )
Through Prop. Sailesh Rajaram Vetale )
Age : Not known )
Having Address at, G509, Baba Vihar, GWing )
CTS No.6, Angolimala CHSL., Kurla Village, )
Kurla Village Kurla (E), Mumbai 4000 24 )...Defendant
CORAM : HIS HONOUR JUDGE SHRI R.R.BHAGWAT.
(C.R.NO.31).
DATE : 24th AUGUST, 2021.
Mr. Shivpujan Pandey h/f Ms. Fatima Lakdawala Kadri, Adv. for the
plaintiff.
Defendant (Exparte).
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Comm.Suit No. 261/21. 2 Ex-parte Judgment.
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 banking company registered under
the Acquisition and Transfer of Undertaking Act, 1970, having
registered address as mentioned in the title clause of the plaint. The
defendant is a tours and travels company represented by its proprietor
Sailesh Rajaram Vetale. The defendant approached the plaintiff and
filed application for vehicle loan for Hyundai Xcent 5 seater costing
Rs.7,21,944/ on 28/12/2015. Proforma invoice dated 17/08/2015
was also filed with the loan application. The plaintiff sanctioned the
loan with credit facility for a sum of Rs.6,10,000/ as per sanction letter
dated 30/12/2015. The defendant had executed Form NF373
regarding hypothecation of the vehicle, Deed of Hypothecation dated
30/12/2015, Loan Application and InterviewcumAppraisal Form for
Transport Operators dated 30/12/2015. The defendant had submitted
Letter of Undertaking for the payment of principal amount with interest
thereon. Similarly, the defendant executed Standing Instructions
Undertaking Form for recovery of loan installments from his Current
Account No. 021120116711. As the defendant failed to pay the loan
amount as agreed, his account was classified as 'NonPerforming Asset'
on 30/08/2016 as per guidelines of RBI. Accordingly, facility was
recalled by issuing notice dated 26/03/2018 to the defendant. Notice
dated 26/03/2018 was issued to the defendant making demand of
outstanding amount of Rs.7,21,071/ by advocate of the plaintiff, but
the defendant failed to act accordingly. Ultimately, the plaintiff
calculated the dues till the date of the suit and filed the suit with prayer
for recovery of Rs.7,43,841/ with interest at the rate of 10.05% p.a.
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Comm.Suit No. 261/21. 3 Ex-parte Judgment.
plus 2% penal interest for the default from the date of the suit till its
realization. He also prayed for taking possession of the hypothecated
vehicle. He has also sought reliefs of permanent injunction and
disclosure of properties with affidavit owned by the defendant.
3. The defendant was served with writ of summons by way of
publication of writ of summons in daily newspapers 'Navshakti' and 'The
Free Press Journal' on 05/12/2019. Accordingly, affidavit of service
(Exh.4) is placed on record. My learned Predecessor relied upon
affidavit of service (Exh.4) and passed exparte order against the
defendant in roznama dated 29/01/2021.
4. The plaintiff filed evidence affidavit of Jayita Sur, the
Credit Officer of the plaintiff (Exh.5). This witness proved documents
filed with list (Exh.6). The plaintiff closed evidence vide pursis
(Exh.20). Heard learned counsel Shri Shivpujan Pandey for the plaintiff
at length.
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. Whether the plaintiff proves that he is
entitled to recover sum of Rs.7,43,841/
from the defendant ? In the Affirmative.
2. Whether the plaintiff proves that he is
entitled to recover compounding
interest on monthly rests at the rate of
10.05% p.a. plus 2% penal interest on
the sum of Rs.7,43,841/ from the
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Comm.Suit No. 261/21. 4 Ex-parte Judgment.
defendant from the date of the suit till
its realization ? In the Affirmative.
Interest @ 10.05%
p.a.
3. Whether the plaintiff is entitled to the
relief of seizure of the hypothecated
vehicle as prayed ? In the Negative.
4. Whether the plaintiff is entitled to
permanent injunction as prayed ? In the Negative.
5. Whether the plaintiff is entitled to get
relief of direction to the defendant to
disclose details of his properties by
filing an affidavit ? In the Negative.
6. What order as to costs ? As per final order.
7. What order and decree ? Suit is partly
decreed.
REASONS
AS TO POINTS NO.1 TO 5 :
6. PW 1 Jayita Sur is the Constituted Attorney of the plaintiff
and she works as a Credit Officer in the plaintiff bank. She has proved
Power of Attorney (Exh.7). She has specifically deposed about the loan
sanctioned to the defendant for purchasing Hyundai Xcent 5 seater
costing Rs.7,21,944/ on the basis of Loan Application Form dated
28/12/2015 (Exh.8). She also proved documents Proforma Invoice
(Exh.9), Sanction Letter (Exh.10), Deed of Hypothecation (Exh.12),
Letter of Undertaking (Exh.14) and Statement of Account (Exh.16).
She has further deposed that loan amount of Rs.6,10,000/ was
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Comm.Suit No. 261/21. 5 Ex-parte Judgment.
sanctioned on 30/12/2015. According to her, the defendant availed
auto loan credit facility aggregating to Rs.7,43,841/ and the plaintiff is
entitled to recover it with future interest at the rate of 10.05% p.a. as
agreed.
7. Considering documents on record, it is clear that the
defendant had actually availed benefit of loan amount sanctioned by
the plaintiff on his application and he failed to repay the same. The
defendant is bound to pay interest on the loan amount as agreed by the
parties while sanctioning the loan. The plaintiff has not clarified the
basis for claiming penal interest at the rate of 2%. Therefore, penal
interest cannot be granted. Evidence on record is sufficient to decree
the suit by granting main reliefs to the plaintiff.
8. While decreeing the suit, the first relief of recovery of
Rs.7,43,841/ with future interest can be granted. So far as other reliefs
stated in prayer clause (b) to (h) are concerned, they are either
touching to the aspect of interim reliefs or modes of execution. While
granting main relief to the plaintiff, it is not necessary to comment upon
the manner in which decree can be executed. It is implied that the
plaintiff should follow the procedure laid down under Order 21 of the
CPC for getting the decree executed. For all these reasons, other reliefs
are not required to be granted to the plaintiff. Cost of the suit is liable
to be saddled on the shoulder of the defendant. In the light of above
discussion, I record my findings as to Points no.1 and 2 in the
affirmative and as to Points no.3 to 5 in the negative. Hence, the
order :
ORDER
1. Commercial Suit No. 261/2021 is partly decreed.
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Comm.Suit No. 261/21. 6 Ex-parte Judgment.
2. The defendant is directed to pay amount of Rs.7,43,841/
(Rupees Seven Lakhs Fortythree Thousand Eight Hundred Forty
one Only) to the plaintiff within three months from the date of
decree.
3. The defendant is further directed to pay interest @ 10.05% p.a.
on the amount of Rs.7,43,841/ to the plaintiff from the
date of filing of the suit till its realization.
4. The defendant shall bear the costs of the suit.
5. Decree be drawn accordingly.
(R.R.BHAGWAT)
Judge,
City Civil & Sessions Court,
(Court Room No.31)
Date : 24/08/2021. Mumbai.
1. Dictated on : 23/08/2021.
2. Transcribed on : 24/08/2021.
3. Signed on : 24/08/2021.
4. 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
24/08/2021. 3.48 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 24/08/2021.
Judgment/Order signed by P.O. on 24/08/2021.
Judgment/Order uploaded on 24/08/2021.
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