Final Order 1

Order Details: Ex-parte Judgement
Pdf Text: Comm.Suit No. 196/19. 1 Ex-parte Judgment (Exh.33).
MHCC010100732019
Presented on : 01-10-2019
Registered on : 22-11-2019
Decided on : 27-01-2022
Duration : 2 years, 3 months, 26 days
IN THE BOMBAY CITY CIVIL COURT AT BOMBAY.
COMMERCIAL SUIT NO. 196 OF 2019
Exh.33.
Syndicate Bank, a Nationalized Bank, )
Body Corporate constituted and functioning )
under The Banking Companies (Acquisition )
and Transfer of Undertakings) Act, 1970, ) (Deleted as per
having its Head office at Manipal, ) order in Ch/s
Karnataka State and having one of the ) No. 1784/2021)
Branch Offices at Shreepal Cooperative )
Housing Society, 12 – J.M. Mehta Road, )
Malabar Hill, Mumbai 400 006 )
Canara Bank, a Nationalized Bank, )
Body Corporate constituted and functioning )
under The Banking Companies (Acquisitions )
and Transfer of Undertakings) Act, 1970, )
having its Head office at Bangalore, )
Karnataka State and having one of the )
Branch known as 'Malabar Hill Branch' )
At Ground Floor, Asmita Building No. 1, )
204 Walkeshwar Road, Teen Batti, )
Malabar Hill, Mumbai 400 006 )...Plaintiff
Versus
Mobin Sadik Khan, adult, Indian Inhabitant )
carrying on Proprietorship Business in the )
name and style of M/s. Khan Travels and )
having address at Room No. 27, Prem Nagar, )
16 Dr. Bhagwandas Indrajit Road, )
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Comm.Suit No. 196/19. 2 Ex-parte Judgment (Exh.33).
Near Dhoke House, Malabar Hill, )
Mumbai – 400 006 )...Defendant
SUIT FOR RECOVERY OF MONEY
CORAM : HIS HONOUR JUDGE SHRI R.R.BHAGWAT.
(COURT ROOM NO.31).
DATE : 27th JANUARY, 2022.
Shri Rajkumar Gaikwad, Advocate for the plaintiff.
Defendant – (Exparte). (No W.S.).
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 Malabar Hill. Constituted Attorney
Megha Bagaria filed the suit for the plaintiff bank. Syndicate Bank
amalgamated with Canara Bank as per Notification dated 01/04/2020.
Hence, Canara Bank came into picture in the present suit by virtue of
amendment carried out as per order in Chamber Summons No
1784/2021. The defendant is proprietor of a proprietary concern
namely M/s. Khan Travels. On an application of the defendant, the
plaintiff had sanctioned TLOSL (Term Loan) Loan of Rs.5,55,000/ to
the defendant for purchasing Maruti Suzuki Swift Dezire LDI Tour
Taxi having No. MH01BT9758. Accordingly, sanction letter was
issued on 09/03/2016. The defendant executed other documents
including Deed of Hypothecation of the vehicle. Though the loan
amount was to be repaid with monthly installments of Rs.9,500/
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Comm.Suit No. 196/19. 3 Ex-parte Judgment (Exh.33).
within period of 85 months with interest at the rate of 10.95% p.a., the
defendant committed breach in repayment of the loan amount.
Account of the defendant turned NPA on 31/05/2017. Then, demand
notice was issued on 19/07/2018 calling upon the defendant to pay
outstanding amount, but the defendant failed to make payment.
Therefore, the said vehicle was seized through seizure agent i.e. M/s.
Synergy Consultants and it was sold to Mohd. Ameen Khan for
Rs.1,55,000/ in auction on 08/01/2019. Even then, amount of
Rs.4,21,385.44 was outstanding. The plaintiff again sent legal notice
dated 13/03/2019 through panel advocate to the defendant and it was
duly received by him on 14/03/2019, but in vein. Hence, the plaintiff
filed the suit for recovery of outstanding amount of Rs.4,37,390.11 with
further interest at the rate of 10.75% p.a. compounded at monthly rests
plus 2% overdue charges from the date of filing of the suit till the date
of realization with costs of the suit.
3. The defendant is duly served with writ of summons as per
affidavit of service (Exh.5). The defendant appeared on 06/02/2020
and filed application for appointment of legal aid lawyer and the said
application was allowed. Subsequently, the defendant and legal aid
lawyer failed to participate in the proceeding of the suit. Hence, my
learned predecessor passed 'No W.S. Order' against him on
08/02/2021.
4. PW 1 Abhishek Chaturvedi, 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.9 to 31. The
plaintiff closed evidence vide pursis (Exh.32). Heard learned counsel
Shri Rajkumar Gaikwad for the plaintiff.
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Comm.Suit No. 196/19. 4 Ex-parte Judgment (Exh.33).
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.4,37,390.11 from the defendant ? If
yes, at what rate of interest ? In the Affirmative.
@ 10.75% 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 POINT NOS.1 AND 2 :
6. PW 1 Abhishek Chaturvedi has specifically stated that the
loan amount enumerated in the plaint was sanctioned for purchasing
the vehicle to the defendant. The said vehicle is also hypothecated as
per Exh.12. The defendant failed to make payment. The defendant
neglected to make payment of outstanding loan amount as stated in
statement of account (Exh.28). Meanwhile, the said vehicle is seized
and sold and sale proceeds of Rs.1,55,000/ are appropriated towards
recovery of loan amount as per documents (Exh.21 to 25). Therefore,
the plaintiff filed the suit for recovery of balance amount with accrued
interest. 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
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Comm.Suit No. 196/19. 5 Ex-parte Judgment (Exh.33).
interest within the range of interest as per terms of the agreement with
the defendant. There is no hurdle in the way of granting interest as
demanded by the plaintiff. At the same time, it does not appear to be
appropriate to grant overdue charges at the rate of 2% because the
defendant had obtained loan for purchasing the vehicle in order to earn
his livelihood. Costs of the suit is liable to be imposed on the
defendant. 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. 196/2019 is partly decreed.
2. The defendant is directed to pay amount of
Rs.4,37,390.11 (Rupees Four Lakhs Thirtyseven Thousand
Three Hundred Ninety and Paise Eleven Only) to the
plaintiff with interest @ 10.75% 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. The defendant shall bear the costs of the suit.
4. Decree be drawn up accordingly.
(R.R.BHAGWAT)
Judge,
City Civil & Sessions Court,
(Court Room No.31)
Date : 27/01/2022. Mumbai.
1. Dictated online on : 27/01/2022.
2. Signed on : 27/01/2022.
3. Delivered to Certified :
Copy Section on
“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
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Comm.Suit No. 196/19. 6 Ex-parte Judgment (Exh.33).
SIGNED JUDGMENT/ORDER”
UPLOAD DATE AND TIME NAME OF STENOGRAPHER
27/01/2022. 2.50 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 27/01/2022.
Judgment/Order signed by P.O. on 27/01/2022.
Judgment/Order uploaded on 27/01/2022.
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