Final Order 1

Order Details: Ex-parte Judgement
Pdf Text: 1 Comm. SU No.042020
MHCC010079002019
Presented on : 30.07.2019
Registered on : 04.01.2020
Decided on : 01.04.2022
Duration : Y2, M8, D2
IN THE CITY CIVIL COURT FOR GR.BOMBAY AT MUMBAI
COMMERCIAL SUIT NO.04 OF 2020
UNION BANK OF INDIA, a body ]
Corporate constituted under the ]
Banking Companies (Acquisition and ]
Transfer Of Undertakings) Act, 1970 and ]
having their Head Office at 239, ]
Vidhan Bhavan Marg, Mumbai400 021 ]
and having their Ghatkopar (West) Branch ]
amongst other places at 3, 4 5 & 6 ]
Usha Villa Coop. Hsg. Society, Plot No.B2, ]
Amrutnagar, Ghatkopar (West), ]
Mumbai 400 086. ]
Through its Branch Manager, ]
Mr.Vivek Ranjan ]......Plaintiffs
V/s
1. Mr. VISHWANATH JAGANNATH PARDESHI, ]
2. Mrs. NITA VISHWANATH PARDESHI, ]
Both Adults, age not known, Indian Inhabitant, ]
residing at Flat No.302, 3rd Floor, Shiv Ganesh ]
C.H.S. Ltd, Near Kailash Nagar, Ambernath (E), ]
Thane 421 501. ]......Defendants
APPEARANCE :
Adv.Nainesh Amin for the plaintiffs.
Defendants Exparte.
-- 1 of 7 --
2 Comm.SU No.042020
CORAM : RAJESH A. SASNE
ADHOC JUDGE
(C.R.No.32)
DATED : 1st April, 2022
EXPARTE JUDGMENT
This suit is under Section 2(i)(c) of the Commercial Courts
Act, 2015, for recovery of outstanding amount of loan.
In brief, the plaintiff's case is as under :
2. The plaintiff is banking company. The defendant Nos.1 and
2 are husband and wife and had jointly availed credit facility under the
plaintiff's Union mortgage scheme. They had jointly applied and availed
of term loan/SOD facility under Union mortgage scheme of the
plaintiffs against mortgage of their Flat No.302. Same is the mortgage
property. Pursuant to the defendants' request for grant of credit facility
under Union mortgage scheme to the extend of Rs.10,00,000/, the
plaintiffs vide sanction letter dated 31.01.2014 sanctioned and granted
said credit facility. The defendants have availed said credit facility
under said scheme for amount of Rs.10,00,000/. Said loan was
repayable with floating rate of interest at the rate of 14% p.a. at
monthly rests in 119 equated monthly installments, each of Rs.15,586/
w.e.f. March2014. Additional penal interest at the rate of 2% p.a. was
agreed to be paid by the defendants on over due installments. The
defendants have jointly executed necessary security documents. The
defendants have deposited the title deeds in respect of mortgage
property as a security for repayment of housing loan of Rs.10,00,000/.
The defendants have time to time executed debit balance confirmation
letters admitting their liability. By such letter dated 23.08.2018, the
defendant No.1 have admitted the liability to the extent of
-- 2 of 7 --
3 Comm.SU No.042020
Rs.7,87,288.95ps as on 30.03.2018. Due to defaults on the part of the
defendants, the credit facility resulted into NPA on 31.12.2014. It was
upgraded on 09.08.2016 and thereafter, once again classified as NPA on
31.01.2017 and again upgraded on 31.12.2017. The plaintiffs by notice
dated 18.07.2018 called upon the defendants to adjust the outstanding
dues. The defendants by letter dated 23.08.2018 requested for time,
however, they have failed to comply with the undertaking to pay the
outstanding amount.
3. On 05.11.2018, the plaintiffs have issued demand notice
under Section 13(2) of the Securitisation and Reconstruction of
Financial Assets and Enforcement of Security Interest Act, 2002 (in
short “SARFAESI Act”), upon the defendants and called upon them to
pay the outstanding amount of Rs.8,23,013.45ps. Inspite of receipt of
said notice the defendants have failed to pay the outstanding amount.
The plaintiffs have proposed to adopt measures under the SARFAESI
Act, against the defendants and mortgaged property. The suit is filed
without prejudice to such measures. The defendants are liable to pay
amount of Rs.7,70,419.38ps with interest at the rate of Rs.12.85% p.a.
on 30.07.2019. The defendants are likely to dispose of the mortgaged
the property. The plaintiffs have a valid and subsisting charge on the
mortgaged property. With these contentions the plaintiffs have prayed
for decree for recovery of due amount alongwith rate of interest @
12.85% p.a. with monthly rests from 31.07.2019, till the date of
realization. The plaintiffs have also sought declaration in respect of
secured asset of mortgaged property.
4. In view of order dated 10.03.2021, suit is proceeded Ex
parte against the defendant No.2 and in view of order dated
-- 3 of 7 --
4 Comm.SU No.042020
30/08/2021, suit is proceeded Exparte against the defendant No.1.
5. Heard the learned Advocate for the plaintiffs. No argument
of the defendants. Points for determination along with my findings
thereon with reasons are as under:
POINTS FINDINGS
1. Whether the plaintiffs prove that the
defendants have failed to pay
Rs.7,70,419.38ps as outstanding amount of
the loan borrowed by them from the plaintiffs
Bank ?
Yes
2. If yes, what amount is due and payable by the
defendants to the plaintiffs and at what rate of
interest ?
Rs.7,70,419.38ps
alongwith interest
@ 12.85% p.a.
3. What order and decree? Suit is decreed.
REASONS
AS TO POINT NOs.1 and 2:
6. All these points are interlinked with each other, hence they
are taken together for consideration. The plaintiffs in support of its
claim has examined Ms.Rashmi (PW1) at Exh.8. She deposes in
support of the suit claim. Letter of sanction dated 31.01.2014 at Exh.11
shows that the defendants have applied to the plaintiffs for sanction of
loan of Rs.10,00,000/ (Rupees Ten Lakhs Only) and plaintiffs have
sanctioned it. Accordingly, the defendants have executed the loan
agreement dated 31.01.2014Exh.12 in which the agreed rate of
interest was 14% p.a. In respect of said loan, the defendants have also
executed letter of continuityExh.13, promissory noteExh.14, letter of
undertakingExh.15, agreement on rate of interestExh.16,
memorandum relating to deposit of title deedsExh.17. The defendants
have also deposited the agreement of sale dated 03.09.2007Exh.18 and
-- 4 of 7 --
5 Comm.SU No.042020
agreement to sale dated 28.12.2012Exh.19. On 23.08.2018 the
defendants have executed debit balance confirmation letterExh.22
accepting the liability and extending the limitation. All these documents
alongwith sanction letter show that the plaintiffs have sanctioned term
loan of Rs.10,00,000/(Rupees Ten Lakhs only) to the defendant with
rate of interest @ 14% p.a. The account extractExh.25 shows that the
defendants have failed to repay the outstanding amount of loan and on
31.08.2019 amount of Rs.7,78,353.38ps was due and payable. The
plaintiffs evidence regarding the same remained unchallenged and same
is required to be accepted. Thereby the plaintiffs prove that against the
loan obtained by the defendants from the plaintiffs, amount of
Rs.7,70,419.38ps is due and payable from the defendant alongwith
interest @ 12.85% p.a.
7. The memorandum of deposit of title deeds shows that Flat
No.302, Building No.8, Shiv Ganesh Cooperative Housing Society Ltd.
situated at VillageAmbernath, DistrictThane is mortgaged with the
plaintiffs as a security for repayment of said loan.
8. As aforesaid amount of Rs.7,70,419.38ps is due and
payable from the defendants to the plaintiffs alongwith interest @
12.85% p.a. Hence, the plaintiffs prove the claim against the
defendants. In the result, I answer point No.1 and 2 accordingly.
AS TO POINT NO.3:
9. In view of my findings to point Nos.1 and 2, the suit is
liable to be decreed with costs. In the result, in answer to point No.3, I
pass the following order.
-- 5 of 7 --
6 Comm.SU No.042020
ORDER
1. Suit is decreed with costs.
2. The defendants do pay to the plaintiff jointly and
severally an amount of Rs.7,70,419.38ps (Rupees
Seven Lakhs Seventy Thousand Four Hundred
Nineteen and Thirty Eight Paise Only) alongwith
interest @ 12.85% p.a. from the date of filing of suit
till its realisation.
3. It is declared that outstanding amount against the loan
is validly secured in favour of the plaintiff Bank by
mortgage of the defendants in respect of Flat No.302,
Building No.8, Shiv Ganesh Cooperative Housing
Society Ltd. situated at VillageAmbernath, District
Thane. The plaintiff is entitled to recover the
outstanding amount of loan in accordance with the
mortgage.
4. Decree be drawn up accordingly.
(Rajesh A.Sasne)
Judge,
City Civil & Sessions Court,
Date : 01.04.2022 Mumbai.
Directly typed on Computer : 01.04.2022
Signed by HHJ on : 04.04.2022
-- 6 of 7 --
7 Comm.SU No.042020
“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER”
04.04.2022 at 01.50 p.m.
UPLOAD DATE AND TIME
(Mrs. P.L.Parab)
NAME OF CLERKTYPIST
Name of the Judge HHJ SHRI RAJESH A.SASNE
(COURT ROOM NO.32)
Date of pronouncement of
judgment/order
01.04.2022
Judgment/order signed by P.O. on 04.04.2022
Judgment/order uploaded on 04.04.2022
-- 7 of 7 --