Order 1

Order Details: Ex-parte Judgement
Pdf Text: Comm.Suit No. 770/21. 1 Ex-parte Judgment (Exh.20).
MHCC010075662018
Presented on : 25-06-2018
Registered on : 02-03-2019
Decided on : 21-10-2021
Duration : 3 years, 3 months, 26 days
IN THE BOMBAY CITY CIVIL COURT AT BOMBAY.
COMMERCIAL SUIT NO. 770 OF 2021
Exh.20.
Canara Bank, a body corporate )
Constituted under the Banking Companies )
(Acquisition & Transfer of Undertakings) Act, )
1970 having its Head Office at 112, J. C. Road, )
Bangalore– 560 002, and one of its Branch Office )
amongst others known as Mazagaon Branch )
having address at All Saints Home Building, 54 A, )
Dockyard Road, Ekta Nagar, Mazagaon, )
Mumbai400010, in the State of Maharashtra, )
represented by Mr. Nishant Sinha )
Age: 25 Years, officer )...Plaintiff
Versus
1. M/s Om Swami Tours and Travels )
(Proprietor Mr. Avishkar Shrikrishna Achrekar) )
295, Swami Bunglow, RSC31, Swami Samarth )
Marg, Near St. Rock High School, Gorai2, )
Borivali West, Mumbai400091 )
2. Mr. Avishkar Shrikrishna Achrekar, )
(Proprietor of M/s Om Swami Tours and Travels) )
Age – Adult, )
295, Swami Bunglow, RSC31, Swami Samarth )
Marg, Near St. Rock High School, Gorai2, )
Borivali West, Mumbai400091 )...Defendants
SUIT FOR RECOVERY OF MONEY
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Comm.Suit No. 770/21. 2 Ex-parte Judgment (Exh.20).
CORAM : HIS HONOUR JUDGE SHRI R.R.BHAGWAT.
(C.R.NO.31).
DATE : 21st OCTOBER, 2021.
Ms. Saraswati Purohit, Advocate for the plaintiff.
Defendants – (Exparte).
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 no.1 is a
proprietary firm represented by defendant no.2. On an application
dated 21/08/2015 of the defendants, the plaintiff had sanctioned term
loan of Rs.9,60,000/ to the defendants for purchasing Nissan Sunny
XLD 5 car on 14/09/2015. Accordingly, letter evidencing execution of
documents on Form NF 803 was executed on 14/09/2015. The
defendants also executed other documents including Deed of
Hypothecation of the vehicle. Though the loan amount was to be
repaid in 60 months, the defendants committed breach in repayment of
the loan amount. Then, legal notice was issued on 12/06/2018 calling
upon the defendants to pay outstanding amount, but the defendants
failed to make payment. Hence, the plaintiff filed the suit for recovery
of outstanding amount of Rs.8,88,228.84 as on 05/06/2018 with
further interest at the rate of 9.70% p.a. with monthly rest from the
date of filing of the suit plus 2% penal interest from the date of account
becoming NPA till the date of realization with costs of the suit.
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Comm.Suit No. 770/21. 3 Ex-parte Judgment (Exh.20).
3. The defendants were duly served with writ of summons as
per affidavit of service, but they failed to appear and oppose the claim
of the plaintiff. Therefore, my learned Predecessor passed the exparte
order against them on 24/01/2020.
4. PW 1 Pramod Singh, Manager of the plaintiff bank deposed
on evidence affidavit (Exh.6) and proved documents filed with list of
documents (Exh.7). Proved documents are at Exh.9 to 18. The plaintiff
closed evidence vide pursis (Exh.19). Heard learned counsel Miss
Saraswati Purohit 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.8,88,228.84 ? If yes, at what rate of
interest ? In the Affirmative.
@ 9.70% p.a. with
monthly rest.
2. What order as to cost ? As per final order.
3. What order and decree ? Suit is partly
decreed.
REASONS
AS TO POINT NOS.1 AND 2 :
6. PW 1 Pramod Singh has specifically stated that the loan
amount enumerated in the plaint was sanctioned for purchasing the
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Comm.Suit No. 770/21. 4 Ex-parte Judgment (Exh.20).
vehicle to the defendants. The said vehicle is also hypothecated as per
Exh.15. As the defendants failed to make payment, legal notice
(Exh.16) was issued and served upon the defendants. Even then, the
defendants neglected to make payment of outstanding loan amount as
stated in statement of account (Exh.17).
7. In short, claim of the plaintiff is proved from oral as well as
documentary evidence on record. Interest rate of 9.65% is stated in
Exh.15 and the defendants are bound to pay 0.55% above the said
interest rate. It means that the defendants are liable to pay interest at
the rate of 10.20% p.a.. The plaintiff has claimed interest at the rate of
9.70% p.a. which is below the agreed rate of interest. Therefore, there
is no hurdle in the way of granting interest as demanded by the
plaintiff. So far as penal interest is concerned, it does not appear to be
appropriate to grant such interest considering nature of transaction.
The defendants had intended to earn his livelihood by using the said
vehicle purchased by obtaining loan from the plaintiff bank. Therefore,
penal interest is not granted. 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 and 2 in the affirmative with interest rate as discussed
above. Hence, I pass the following order :
ORDER
1. Commercial Suit No. 770/2021 is partly decreed.
2. The defendants are directed to pay amount of
Rs.8,88,228.84 (Rupees Eight Lakhs Eightyeight Thousand
Two Hundred Twentyeight and Paise Eightyfour Only) to
the plaintiff with interest @ 9.70% p.a. with monthly rest
from 05/06/2018 till the date of realization within three
months from the date of decree.
3. The defendants shall bear the costs of the suit.
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Comm.Suit No. 770/21. 5 Ex-parte Judgment (Exh.20).
4. Defendants no.1 and 2 are jointly and severally liable to
make payment of the decretal amount to the plaintiff.
5. Decree be drawn up accordingly.
(R.R.BHAGWAT)
Judge,
City Civil & Sessions Court,
(Court Room No.31)
Date : 21/10/2021. Mumbai.
1. Dictated online on : 21/10/2021.
2. Signed on : 21/10/2021.
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
21/10/2021. 5.23 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 21/10/2021.
Judgment/Order signed by P.O. on 21/10/2021.
Judgment/Order uploaded on 21/10/2021.
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