Order 1

Order Details: Ex-parte Judgement
Pdf Text: :1: Summary Suit No.1374/2018
Received on : 30.06.2018
Registered on : 28.11.2018
Decided on : 12.06.2019
Duration : Y M D
00 11 13
IN THE BOMBAY CITY CIVIL COURT AT MUMBAI
SUMMARY SUIT NO. 1374 OF 2018
CNR NO.: MHCC010078842018
Corporation Bank
a body corporate constituted under the provisions
of the Banking Companies (Acquisition & Transfer
of Undertakings) Act, 1980 having their having its
Zonal Office at 28, Mittal Chambers, 2nd Floor,
Nariman Point, Mumbai 400 021 and a Branch
Office amongst others at Corporation Bank, 520,
Mangireesh Building, Ground Floor, L.J. Road
Cross, Mahim, Mumbai 400 016, represented
through its Manager Mr. Noorul Haque Sheikh
age 40 years. ...Plaintiff
V/s
1. Feroz Aslam Khan, Adult, an Indian
Inhabitant, Proprietor of M/s Umera
Enterprises, Having address as Room
No.14, Cross Road No.1, Ghadpdev
Compound , D Block, Mazgaon
Mumbai 400 010.
2. Noor Mohammed Shah, Adult, an
Indian Inhabitant, Proprietor of K.G.
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N. Engineering Works, Having address
as Room No.5, Plot No.6, Hirabai
Compund Chawl, Cross Road No.1,
New Masjid, Mazgaon, Mumbai
400010. ...Defendants.
Appearances:
Advocate Divya Shrivastav for the Plaintiff.
Defendants Exparte.
CORAM : HER HONOUR JUDGE
S.P. AGARWAL
(C.R.NO.28)
DATED : 12th JUNE, 2019.
[ J U D G M E N T ]
Story of plaintiff in short is as under :
1. Plaintiff has stated that the defendant No.1 had approached to
the plaintiff for financial assistance in the month of October, 2015. The
plaintiff conceded the request of the defendant and agreed to grant the
Demand Loan Secured of Rs.5,00,000/ to the defendant as per his
requirement. In order to secure the loan from the plaintiff, the
defendant has submitted the Loan Application dated 12.10.2015 and
other documents regarding his source of income with the plaintiff. After
scrutinising the said documents, the plaintiff has sanctioned the loan of
Rs.5,00,000/ to the defendant No.1 vide their sanction letter bearing
No.OR/CSI/DLS/150153/201516 dated 17.10.2015 upon the terms
and conditions set out therein.
2. Plaintiff has further stated that plaintiff had disbursed the
Demand loan as per the terms of the Loan Agreement dated
17.10.2015, wherein after the Common Deed of Hypothecation dated
17.10.2015 has been executed between defendant and plaintiff,
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wherein the defendant had agreed to abide by the terms and conditions
mentioned therein. As per the terms and conditions of the said Common
deed for Hypothecation, the defendant had agreed to pay monthly
instalments of Rs.10,972/, providing for interest at the rate of 11.15%
per annum floating interest (being 1.50% over and above base rate; the
then base rate being 9.65%) thereon to the plaintiff. The defendant has
also agreed to pay penal interest of 2% per annum over and above the
normal rate of interest, in case the defendant fails to comply with the
terms and conditions of the Loan Agreement.
3. Plaintiff has further stated that defendant had failed and
neglected to pay the monthly instalment regularly, further failed to
regularise the above loan account in accordance with terms and
conditions of the said Loan Agreements, on which the plaintiff have
granted the above loan and as such the account bearing No.
DLS/01/150153(560536000050950) of the defendant became N.P.A.
on 31.03.2017. The plaintiff on numerous occasions called upon the
defendant to regularize his said loan account, however, despite the
repeated request the defendant did not pay any heed to the plaintiff.
4. Plaintiff has further stated that in view of these circumstances,
an amount of Rs.522,891/, is outstanding as on 21.05.2018. Hence,
the plaintiff through their Advocate, issued Notice dated 23.05.2018 to
the defendants inter alia called upon to make the payment of
Rs.522,891/ to the plaintiff which is due and payable against the
aforesaid loan. The said notice dated 23.05.2018 was sent on
25.05.2018 via registered post addressing it to the defendants herein at
the address mentioned in the cause title.
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5. Plaintiff has further stated that the defendants, has made last
payment of Rs.67,838/ on 29.09.2016, however, the defendant did not
clear his entire outstanding dues within time. Hence, the defendant is
liable to pay the sum of Rs.5,28,332/ on 26.06.2018 as per the
particulars of claim. Plaintiff has further stated that hence, in view of
the facts and circumstances as mentioned herein, it is in the interest of
justice and equity that this Court be pleased to allow this Suit, and
direct the defendant to pay an amount of Rs.5,28,332/ along with
future interest @ 11.15% from 27.06.2018 till the date of payment.
Therefore, plaintiff has filed this suit.
6. Defendant Nos. 1 and 2 failed to appear in the suit, therefore,
suit has proceeded exparte against them.
7. Heard the Ld. Advocate for the plaintiff.
8. Following points arise for determination and their findings
followed by reasons are as stated below:
Sr. No. POINTS FINDINGS
1. Whether plaintiff is entitled to get
sum of Rs.5,28,332/ from
defendants alongwith interest @
11.15% p. a. on the sum of
Rs.4,55,090/ from the date of filing
of the suit till its realisation ?
...Partly in the
affirmative.
2. What order and Decree ? ...As per final order
REASONS
9. Plaintiff relied upon the following documents as documentary
evidence which are as under :
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Sr.
No.
Exhibits Particulars
1. Exh.8 Verified Copy of the said Power of Attorney dated
29.09.2009.
2. Exh.9 Original Loan Application dated 12.10.2015.
3. Exh.10 Original sanction letter dated 17.10.2015.
4. Exh.11 Original Agreement for Term Loan dated 17.10.2015.
5. Exh.12 Original Letter of Undertaking/Declaration dated
17.10.2015.
6. Exh.13 Original Guarantee Agreement dated 17.10.2015
executed between defendant No.2 as guarantor and
plaintiff.
7. Exh.14 Original Common deed for Hypothecation dated
17.10.2015.
8. Exh.15 Office copy of Invoice dated 23.05.2018.
9. Exh.16 Original Postal Receipt dated 25.05.2018.
10. Exh.17 Original acknowledgement card and returned envelope.
11. Exh.18 Original the Statement of the Account.
12. Exh.18 Original IT Certificate
AS TO POINT NOS. 1 AND 2:
10. Plaintiff has filed evidence of Noorul Haque Shaikh (P.W.1), the
Chief Manager of the plaintiff in the form of affidavit below Exh.6 and
he has stated in his evidence that the defendant No.1 is the principal
borrower having address more particularly mentioned in the cause
titled of the suit. He has further stated that the defendant No.2 has
stood as the Guarantor for the defendant No.1 to the loan advanced to
defendant No.1, having his residential address as mentioned in the
cause title. In view of defendant No.2's status as the guarantor of the
defendant No.1 for the loan facility availed by defendant No.1, the
defendant No.2 is equally liable to the dues of the defendant No.1.
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11. Noorul Haque Shaikh (P.W.1) has further stated that the
defendant No.1 had approached to the plaintiff for financial assistance
in the month of October, 2015. The plaintiff conceded the request of the
defendant and agreed to grant the Demand Loan Secured of
Rs.5,00,000/ to the defendant as per his requirement. In order to
secure the loan from the plaintiff, the defendant No.1 has submitted the
Loan Application dated 12.10.2015.
12. Noorul Haque Shaikh (P.W.1) has further stated that the
plaintiff has disbursed Demand loan of Rs.5,00,000/ on 17.10.2015,
against which the defendant has executed the following documents:
a. Agreement for Term Loan dated 17.10.2015 executed by and
between Feroz Aslam Khan as the Borrower of the one part
and Corporation Bank, Mahim Branch as the Bank of the
second part.
b. Letter of Undertaking/ Declaration dated 17.10.2015.
c. Guarantee Agreement dated 17.10.2015 executed between
defendant No.2 as guarantor and plaintiff.
d. Common deed for Hypothecation dated 17.10.2015.
13. Noorul Haque Shaikh (P.W.1) has further stated that the
defendant is holding a Loan account bearing No.DLS/01/150153
(560536000050950) for Rs.5,00,000/ with the plaintiff in the name of
Feroz Aslam Khan since October, 2015. Further, as per the terms and
conditions of the sanction letter dated 17.10.2015 and Agreement for
Term Loan dated 17.10.2015, the defendant is liable to repay
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Rs.5,00,000/ in 60 monthly instalment of Rs.10,972/ together with
11.15% per annum floating interest thereon to the plaintiff.
14. Noorul Haque Shaikh (P.W.1) has further stated that plaintiff
had disbursed the Demand loan as per the terms of the Loan Agreement
dated 17.10.2015, wherein after the Common Deed of Hypothecation
dated 17.10.2015 has been executed between defendant and plaintiff,
wherein the defendant had agreed to abide by the terms and conditions
mentioned therein. As per the terms and conditions of the said Common
deed for Hypothecation, the defendant had agreed to pay monthly
instalments of Rs.10,972/, providing for interest at the rate of 11.15%
per annum floating interest (being 1.50% over and above base rate; the
then base rate being 9.65%) thereon to the plaintiff. The defendant has
also agreed to pay penal interest of 2% per annum over and above the
normal rate of interest, in case the defendant fails to comply with the
terms and conditions of the Loan Agreement.
15. Noorul Haque Shaikh (P.W.1) has further stated that defendant
had failed and neglected to pay the monthly instalment regularly,
further failed to regularise the above loan account in accordance with
terms and conditions of the said Loan Agreements, on which the
plaintiff have granted the above loan and as such the account bearing
No. DLS/01/150153(560536000050950) of the defendant became
N.P.A. on 31.03.2017. The plaintiff on numerous occasions called upon
the defendant to regularize his said loan account, however, despite the
repeated request the defendant did not pay any heed to the plaintiff.
16. Noorul Haque Shaikh (P.W.1) has further stated that in view of
these circumstances, an amount of Rs.522,891/, is outstanding as on
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21.05.2018. Hence, the plaintiff through their Advocate, issued Notice
dated 23.05.2018 to the defendants inter alia called upon to make the
payment of Rs.522,891/ to the plaintiff which is due and payable
against the aforesaid loan. The said notice dated 23.05.2018 was sent
on 25.05.2018 via registered post addressing it to the defendants herein
at the address mentioned in the cause title.
17. Plaintiff has adduced verified copy of Power of Attorney,
Original Loan Application, Original Sanction Letter, Original Agreement
for Term Loan, Original Letter of Undertaking/Declaration, Original
Guarantee Agreement, Original Common Deed for Hypothecation,
Office copy of Notice, Original Postal receipt, Original
acknowledgement card and returned envelope, Original Statement of
the Account and Original IT Certificate on record as documentary
evidence. The oral evidence of plaintiff is corroborated by documentary
evidence. Defendants have failed to challenge all the allegations in the
plaint and evidence of plaintiff. Therefore, plaintiff has proved that it is
entitled to get sum of Rs.5,28,332/ from both defendants jointly and
severally.
18. It appears that as per Section 34 of the Code of Civil Procedure,
it will be proper to direct defendants to give interest @ 9% p.a. on the
amount of Rs.4,55,090/ from the date of filing of the suit till its
realisation. Hence, answer point No.1 partly in the affirmative and pass
following Order:
ORDER
1. Suit is partly decreed with cost.
2. Defendant Nos. 1 and 2 are jointly and severally directed to pay
sum of Rs.5,28,332/ to plaintiff along with interest @ 9% p.a.
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on the sum of Rs.4,55,090/ from the date of filing of the suit till
its realisation.
3. Decree be drawn accordingly.
4. Court fee be refunded as per rules.
(S.P. AGARWAL)
Judge,
Date: 12.06.2019. City Civil Court,
Gr. Bombay.
Dictated on : 12.06.2019
Transcribed on : 12.06.2019
Signed on : 12.06.2019
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CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL SIGNED
JUDGMENT/ORDER.”
10.07.2019 At 12:40 p.m. Mr. Subhash Sukhdeo Poul
UPLOAD DATE AND TIME NAME OF STENOGRAPHER
Name of the Judge (With Court
Room No.)
HHJ Ms. S.P. Agarwal
(C.R.NO.28)
Date of pronouncement of
Judgment/Order
12.06.2019
Judgment/Order signed by P.O. on 12.06.2019
Judgment/Order uploaded on 10.07.2019
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