Final Order 1

Order Details: Ex-parte Judgement
Pdf Text: Comm.Suit No. 771/21. 1 Ex-parte Judgment (Exh.21).
MHCC010075672018
Presented on : 25-06-2018
Registered on : 15-03-2019
Decided on : 28-04-2022
Duration : 3 years, 10 months, 3 days
IN THE BOMBAY CITY CIVIL COURT AT BOMBAY.
COMMERCIAL SUIT NO. 771 OF 2021
(OLD S. C. SUIT NO. 740 OF 2019)
Exh.21.
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 Diamond Age Travel and Tours )
(Proprietor Mr. Harishkumar Manohar )
Palekar) )
901, Krishna Heights, Plot No. 31A, )
Sector36, Kamothe, )
Navi Mumbai410209 )
also at )
Ashish Hospitality Pvt. Ltd. )
B 1104, Jaygurudev Complex )
Sec. 17/18, Kamothe, )
Panvel, Mumbai, )
Maharashtra410209 )
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Comm.Suit No. 771/21. 2 Ex-parte Judgment (Exh.21).
2. Mr. Harishkumar Manohar Palekar )
Age Adult )
(Proprietor of M/s Diamond Age Travel )
and Tours) )
901, Krishna Heights, Plot No. 31A, )
Sector36, Kamothe, )
Navi Mumbai410209 )
also at )
Ashish Hospitality Pvt. Ltd. )
B 1104, Jaygurudev Complex )
Sec. 17/18, Kamothe, )
Panvel, Mumbai, )
Maharashtra410209 )...Defendants
SUIT FOR RECOVERY OF MONEY
CORAM : HIS HONOUR JUDGE SHRI R.R.BHAGWAT.
(COURT ROOM NO.31).
DATE : 28th APRIL, 2022.
Shri Rishabh Mishra i/b Shri Rajkumar Shukla, Advocate for the
plaintiff.
Defendants – (Exparte).
JUDGMENT (EXPARTE)
1. This is a 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.2 is
proprietor of the firm i.e. defendant no.1. On an application dated
22/06/2015 of the defendants, the plaintiff had sanctioned term loan of
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Comm.Suit No. 771/21. 3 Ex-parte Judgment (Exh.21).
Rs.9,11,000/ to the defendants for purchasing Nissan Sunny XLD Car.
Accordingly, sanction letter was issued. The defendants also executed
other documents including Deed of Hypothecation of the vehicle.
Though the loan amount was to be repaid in 60 monthly installments,
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.7,74,929.50 as on 31/05/2018 with further
interest at the rate of 9.70% p.a. plus 2% penal interest compounded on
monthly rests from the date of account becoming NPA till the date of
Judgment and thereafter at the same rate from the date of the
Judgment till the date of realization with costs of the suit.
3. The defendants did not claim RPAD envelopes containing
writ of summons as per endorsements on those envelopes as per
affidavit of service (Exh.6). They failed to appear and oppose the claim
of the plaintiff. Therefore, I passed the exparte order against them on
05/03/2022.
4. PW 1 Pramod Singh, Officer of the plaintiff bank deposed
on evidence affidavit (Exh.7) and proved documents filed with list of
documents (Exh.8). Proved documents are at Exh.10 to 19. The
plaintiff closed evidence vide pursis (Exh.20). Heard learned counsel
Shri Rishabh Mishra 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 :
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Comm.Suit No. 771/21. 4 Ex-parte Judgment (Exh.21).
SR.NO. POINTS FINDINGS
1. Does the plaintiff prove that he is
entitled to recover amount of
Rs.7,74,929.50 from the defendants ? If
yes, at what rate of interest ? In the Affirmative.
@ 9.70% p.a. with
monthly rest.
2. What order as to costs ? As per final order.
3. What order and decree ? Suit is partly
decreed.
REASONS
AS TO POINTS NO.1 AND 2 :
6. PW 1 Pramod Singh has specifically stated that the loan
amount enumerated in the plaint was sanctioned for purchasing the
vehicle to the defendants. The said vehicle is also hypothecated as per
Exh.16. The defendants failed to make payment. The defendants
neglected to make payment of outstanding loan amount as stated in
statement of account (Exh.18). 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 at the rate of 9.70% p.a. and it is as per agreement between the
parties as is reflecting in Sanction Letter (Exh.12) and Deed of
Hypothecation (Exh.16). Hence, agreed interest rate of 9.70% p.a. will
prevail. It does not appear to be appropriate to grant 2% penal interest
because the defendants had obtained loan for purchasing the vehicle in
order to earn their livelihood. Further interest can be awarded from the
date of the suit till the date of realization. There is no need of making
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Comm.Suit No. 771/21. 5 Ex-parte Judgment (Exh.21).
bifurcation in granting further interest as per prayer clause of the plaint.
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. Hence, I pass the following order :
ORDER
1. Commercial Suit No. 771/2021 is partly decreed.
2. Defendants no.1 and 2 are directed to pay amount of
Rs.7,74,929.50 (Rupees Seven Lakhs Seventyfour
Thousand Nine Hundred Twentynine and Paise Fifty Only)
to the plaintiff with interest @ 9.70% p.a. with monthly
rest from the date of the suit till the date of realization
within three months from the date of decree.
3. Defendants no.1 and 2 shall jointly and severally liable to
pay the decretal amount to the plaintiff.
4. Defendants no.1 and 2 shall bear the costs of the suit.
5. Decree be drawn up accordingly.
(R.R.BHAGWAT)
Judge,
City Civil Court,
(Court Room No.31)
Date : 28/04/2022. Mumbai.
1. Dictated online on : 28/04/2022.
2. Signed on : 28/04/2022.
3. Delivered to Certified :
Copy Section on
“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
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Comm.Suit No. 771/21. 6 Ex-parte Judgment (Exh.21).
SIGNED JUDGMENT/ORDER”
UPLOAD DATE AND TIME NAME OF STENOGRAPHER
28/04/2022. 3.51 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 28/04/2022.
Judgment/Order signed by P.O. on 28/04/2022.
Judgment/Order uploaded on 28/04/2022.
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