Order 1

Order Details: Ex-parte Judgement
Pdf Text: 1 Judgment in Commercial Suit No. 772/2021
Lodged on : 25.06.2018
Admitted on : 08.04.2019
Decided on : 08.10.2022
Duration : Y M D
4 3 13
COMMERCIAL SUIT NO. 772 OF 2021
(OLD S.C.SUIT NO. 974 OF 2019)
CNR NO : MHCC010075692018
Exh.19
Canara Bank , a body corporate
constituted under the Banking Companies
(Acquisition and 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,
Mumbai – 400 010, in the State of
Maharashtra, represented by Mr. Nishant
Sinha, Age – 25 years, Officer. ...Plaintiff
Versus
1. M/s. Aayat Tours and Travels
(Proprietor Mr. Abdul Rahim Shah)
R.N. Cen 49/24, Behind Pragati
Chawl, Mahatma Kabir Nagar,
Chakala Vile Parle (East),
Mumbai – 400 099.
2. Mr. Abdul Rahim Shah
(Proprietor of M/s. Aayat Tours and Travels)
R.N. Cen 49/24, Behind Pragati Chawl,
Mahatma Kabir Nagar, Chakala Vile
Parle (E), Mumbai – 400 099. ...Defendants
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2 Judgment in Commercial Suit No. 772/2021
Appearance:
Adv. Ms. Pooja Tripathi for Plaintiff.
defendants exparte.
CORAM : SHRI. A.S.SALGAR
ADHOC JUDGE,
(C.R.NO.31)
DATED :8th OCTOBER 2022
J U D G M E N T
(Delivered on : 08.10.2022)
The plaintiff bank has filed the present suit for recovery of
the amount of Rs.8,47,951.80ps. from the defendants along with
interest at the rate of 9.70% per annum from the date of filing of the
suit till realization of the amount.
The brief facts of the plaintiff's case is as under:
2. The plaintiff is a body corporate constituted under the
Banking Companies (Acquisition and Transfer of Undertakings), Act
1970 and one of its branch amongst others known as Canara Bank,
Mazagaon Branch. Mr. Nishant Sinha, the officer of the plaintiff bank is
a Power of Attorney holder of the plaintiff bank. The defendant no. 1 is
a proprietorship firm having their address as mentioned in the title
clause of the plaint. The defendant no. 2 is the proprietor of defendant
no. 1. The defendant no. 1 through defendant no. 2 approached the
plaintiff bank for Term Loan for Rs.9,49,000/ by making an application
under the scheme Loans to Micro & Small Enterprises. The defendants
agreed to execute several security documents in favour of the plaintiff
bank. In consideration of the documents executed by the defendants,
the plaintiff bank sanctioned Term Loan of Rs.9,49,000/ to the
defendants on or about 17.08.2015 for purchase of Nissan Sunny XLD 5
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3 Judgment in Commercial Suit No. 772/2021
Car. As per the terms of sanction of loan, it was agreed to repay the said
loan in 60 monthly installments commencing from one month after the
date of first disbursement.
3. The plaintiff further averred in the plaint that the
defendants executed the Letter of Undertaking, Letter evidencing
execution of documents on Form NF 803 dated 17.08.2015, Particulars
of Vehciles/Machinery/Equipment/Livestock and agreed to hypothecate
the said vehicle to the plaintiff bank. He also executed the Deed of
Hypothecation. The defendant nos. 1 and 2 promised to repay the loan
along with interest. However, the defendants failed to pay the loan
amount. Therefore, the plaintiff bank through their Advocate sent letter
dated 12.06.2018 to both the defendants and called upon them to make
the payment of outstanding amount. The plaintiff bank in the normal
course of business maintained the accounts. At the foot of the said
account there is now due an amount of Rs.8,47,951.80ps as on
25.05.2018. Hence, the plaintiff has filed the present suit for the
recovery of the amount of Rs.8,47,951.80ps. from the defendants along
with interest at the rate of 9.70% per annum from the date of filing of
the suit till realization.
4. The suit summons was duly served to the defendants, but
they failed to appear before the Court. Hence, in view of order dated
22.02.2022, the suit is proceeded exparte against both the defendants.
5. From the above facts and circumstances, following points
arise for my determination and I have recorded my finding against each
of them with the reasons to follows:
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4 Judgment in Commercial Suit No. 772/2021
POINTS FINDING
1) Whether plaintiff proves that an
amount of Rs.8,47,951.80ps. is
outstanding from the defendants?
In the affirmative.
2) Whether plaintiff is entitled to
recover an amount of
Rs.8,47,951.80ps. from the
defendants? If yes, at what rate of
interest?
In the affirmative.
At the rate of 10.55% per annum.
3) What order and decree? Suit is decreed with costs.
R E A S O N S
6. In support of the claim, the plaintiff bank examined its
Branch Manager namely Vidyadhar Khandait at Exh.6. The plaintiff
filed the documentary evidence i.e. copy of Power of Attorney letter at
Exh.8, Original Loan Application at Exh.9, Sanction Letter at Exh.10,
Original Letter of Undertaking at Exh.11, Original letter evidencing
execution of documents at Exh.12, Original Particulars of Vehicles at
Exh.13, Deed of Hypothecation at Exh.14, the copy of legal notice and
postal receipt at Exh.15, Statement of Account at Exh.16 and Particulars
of Claim is at Exh.17. The evidence closure pursis of the plaintiff is at
Exh.18.
7. Heard Learned Advocate Ms. Pooja Tripathi for the plaintiff
at length
As to point nos. 1 & 2
8. It is the case of the plaintiff bank that on the request of the
defendants, the plaintiff bank has granted the loan of Rs. 9,49,000/ to
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5 Judgment in Commercial Suit No. 772/2021
the defendant nos. 1 and 2. In consideration of the plaintiff having
granted the said loan, the defendants executed various documents in
favour of the plaintiff bank. However, the defendants failed and
neglected to pay the loan amount within time. As a result, the accounts
become irregular. According to the plaintiff, the total amount of
Rs. 8,47,951.80ps is outstanding from the defendants. In support of the
pleading, the plaintiff bank examined its Branch Manager namely
Vidyadhar Khandait at Exh.6. This witness has stated that the bank has
given him authority to depose in this matter by virtue of Power of
Attorney dated 20.08.2022. According to this witness, the defendant no.
1 through defendant no. 2 approached the plaintiff bank for a Term
Loan of Rs.9,49,000/ by making an application. The defendants also
executed various documents in favour of the plaintiff bank. The plaintiff
bank has sanctioned the Term Loan of Rs.9,49,000/ to the defendants
on 17.08.2015 for purchasing Nissan Sunny XLD 5 Car. He also deposed
in respect of execution of various documents in favour of plaintiff bank.
The plaintiff bank granted and disbursed the said Term Loan of
Rs.9,49,000/ to the defendant nos. 1 and 2. The defendants promised
to repay the loan. Therefore, the plaintiff through their Advocate sent
legal notice dated 12.06.2018 to both the defendants for making
payment of outstanding amount. He also stated in respect of statement
of account maintained by the plaintiff bank. The aforesaid evidence
tendered by the plaintiff is not subjected to cross examination. The
defendants failed to conduct cross examination of the plaintiff.
Therefore, it can be said that the oral evidence tendered by the plaintiff
remained unchallenged. Hence, I have no reason to disbelieve the
version of the plaintiff.
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9. The plaintiff placed on record the documents i.e. Authority
Letter at Exh.8 which shows that PW1 Vidyadhar Khandait was
authorized by the plaintiff bank to depose in this matter. The
application form for obtaining the loan at Exh.9 shows that the
defendant nos. 1 and 2 have applied to the plaintiff bank for the loan of
Rs.9,49,000/. The said application bears the signature of the
defendants. The plaintiff also placed on record the original Sanction
Letter at Exh.10 which shows that the plaintiff bank has sanctioned the
loan of Rs.9,49,000/ in favour of the defendants on certain terms and
conditions. The letter of undertaking at Exh.11 also shows that the
defendants have agreed to abide by all the terms and conditions of the
bank that may be imposed while obtaining the loan. Said document also
bears the signature of the defendants. The Letter at Exh.12 also shows
that the defendants have executed documents in favour of plaintiff
bank. Said letter bears the signature of the defendants. The Deed of
Hypothecation at Exh.14 also shows that the defendants have executed
the said Deed of Hypothecation in favour of the plaintiff bank. The said
Deed of Hypothecation also bears the signature of the defendants. The
copy of notice at Exh.15 also shows that the plaintiff bank through their
Advocate issued a legal notice to the defendants and called upon them
to pay the outstanding amount. The Statement of Account at Exh.16
filed on record by the plaintiff also shows that an amount of
Rs.8,47,951.80ps. is outstanding from the defendants. All the aforesaid
documents were not denied or disputed by the defendants. The
defendants have not challenged all the documentary evidence tendered
by the plaintiff at Exh.9 to 17. Therefore, the said documentary
evidence cannot be disbelieved.
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7 Judgment in Commercial Suit No. 772/2021
10. In the present case, the plaintiff bank by adducing oral and
documentary evidence sufficiently established that on the request of the
defendants, the plaintiff bank has sanctioned the loan of Rs. 9,49,000/
in favour of the defendants for purchasing the vehicle and in
consideration of the plaintiff having granted the said loan, the
defendants have executed various documents in favour of the plaintiff
bank. It appears that the defendants have failed and neglected to repay
the loan amount. As a result, the account become irregular. Therefore,
the plaintiff bank sent legal notice to the defendants. The defendants
have not replied the said notice. The Statement of Account filed on
record by the plaintiff also shows that an amount of Rs. 8,47,951.80ps.
is outstanding from the defendants. The plaintiff bank has maintained
the said Statement of Account in the course of business. Thus, the
plaintiff bank by leading oral and documentary evidence sufficiently
proved that an amount of Rs.8,47,951.80ps is outstanding from the
defendants. Therefore, the plaintiff bank is entitled to recover the said
amount from the defendants. Both the defendants are jointly and
severally liable to pay the outstanding dues to the plaintiff bank.
11. So far as interest rate is concerned, the plaintiff bank has
claimed interest at the rate of 9.70% per annum from the date of filing
of the suit till realization. It is seen from the copy of Sanction Letter that
the rate of interest is at the rate of 10.55% per annum. The Deed of
Hypothecation also shows the rate of interest at the rate of 10.55% per
annum. Thus, it is clear that the agreed rate of interest between the
parties is at the rate of 10.55% per annum. In short, the plaintiff bank is
entitled to recover the outstanding amount of Rs. 8,47,951.80ps. from
the defendants along with interest at the rate of 10.55% per anuum
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from the date of filing of the suit till realization of the entire amount.
Hence, I answer points nos. 1 in the affirmative and point no. 2
accordingly.
12. In the light of aforesaid discussion, it is concluded that the
plaintiff bank by leading oral and documentary evidence sufficiently
proved that an amount of Rs. 8,47,951.80ps. is outstanding from the
defendants. Therefore, the plaintiff bank is entitled to recover the said
amount along with interest at the rate of 10.55% per annum from the
defendants. Therefore, the suit is liable to be decreed. Hence, I pass the
following order:
ORDER
1) Commercial Suit No. 772 of 2021 is decreed with costs.
2) The defendants are jointly and severally liable to pay an
amount of Rs.8,47,951.80ps. (Rs. Eight Lakh Forty
Seven Thousand Nine Hundred Fifty One and Eighty
Paise only) to the plaintiff bank along with interest at
the rate of 10.55% per annum on the principal amount
from the date of filing of the suit till realization within 3
months from the date of this decree.
3) Defendants shall bear the costs of the suit.
4) Court fee, if any, be refunded to the plaintiff as per rule.
5) Decree be drawn up accordingly.
(Judgment pronounced in the open Court)
Dated : 08.10.2022 (A.S. Salgar)
Adhoc Judge,
City Civil Court
Gr. Mumbai.
Dictated on : 08.10.2022
Typed on : 08.10.2022
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9 Judgment in Commercial Suit No. 772/2021
CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER”
UPLOAD DATE TIME NAME OF STENOGRAPHER
11.10.2022 5.30 p.m. Mrs. Prachi Y. Potdar
Stenographer Grade I
Name of the Judge HHJ Shri. A.S. Salgar
(C.R.NO. 31)
Date of Pronouncement of
Judgment/Order.
08.10.2022
Judgment/order signed by P.O on 08.10.2022
Judgment/order uploaded on 11.10.2022
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