Final Order 1

Order Details: Ex-parte Judgement
Pdf Text: 1 Comm. Suit No.4172020
MHCC010112422019 Presented on : 5/11/2019
Registered on : 3/3/2020
Decided on : 27/4/2023
Duration : 03Y/01M/24D
Exh.26
IN THE CITY CIVIL COURT AT MUMBAI.
COMMERCIAL SUIT No.417 of 2020
The Jammu & Kashmir Bank Ltd.,
a banking Company incorporated under the
J & K Companies regulation No.XI of 1977
(Samvat), having its registered office at
Maulana Azad Road, Srinagar, J & K State
and a branch office amongst others, at 55,
Noor Mahal, Mohammad Ali Road,
Mumbai400003. ...PLAINTIFF
VERSUS
1. Mr. Yashmaan Rajeev Pathak
S/o. Mr. Rajeev Madhav Pathak Aged about
32 years, residing at Flat No.103, Royal
Palace Coop. HSG. Society Ltd., 2 nd Lane,
Shastri Nagar, Andheri(West), Mumbai400
053.
2. Rajeev Madhav Pathak
Died on 26/10/2020
(deleted as per order dtd.2/2/2023)
3. Mrs. Poonam Rajeev Pathak
W/o. Rajeev Madhav Pathak, Aged about
56 years, residing at Flat No.103, Royal
Palace Coop. HSG. Society Ltd., 2 nd Lane,
Shastri Nagar, Andheri(West), Mumbai400
053.
...DEFENDANTS
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2 Comm. Suit No.4172020
Shri. V. K. Sharma, learned Advocates for plaintiff.
Shri Shivamsinh Deshmukh, learned advocate for defendant
Nos.1 and 3.
Defendant No.2 died.
CORAM : JUDGE SHRI. N.P. TRIBHUWAN (C.R.NO.32)
E XP A R T E J U D G M E N T
(Delivered on 27/4/2023)
This is a suit for recovery of sum of Rs.5,34,356/ together
with interest @ 15.25 % p.a. towards personal conjunction loan facility
and Rs.82,979/ together with interest @ 24% p.a. towards credit card
loan facility.
2. It is case of plaintiff that it is a banking company
incorporated under the J & K Companies regulation No.XI of
1977(Samvat). Defendant No.1 is principal borrower. Defendant Nos.2
and 3 are guarantors. In March 2016 defendant No.1 approached to the
plaintiff vide application dtd.2/3/2016 for a term (personal
consumption loan facility) of Rs.5,00,000/. Plaintiff has sanctioned the
said loan facility in the shape of term loan subject to terms and
conditions of letter of sanction dtd.23/03/2016.
3. As per the terms of sanction letter, the defendant No.2 and
3 stood as guarantor. The said loan facility was sanctioned at the rate of
15.25 % p.a. with monthly rests. The terms loan was to be repaid in 36
equal monthly installments of Rs.17,400/ each. At the time of availing
said loan defendant No.1 has executed demand promissory note
dtd.28/03/2016 in favour of plaintiff for sum of Rs.5,00,000/. He has
also executed loan agreement and affidavit dtd.28/3/2016. Defendant
Nos.2 and 3 have executed letter of guarantee dtd.28/3/2016. Plaintiff
has disbursed term loan of Rs.5,00,000/ to the plaintiff on 28/3/2016.
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3 Comm. Suit No.4172020
4. Defendant No.1 failed to repay the said loan amount. On
16/2/2017 defendant made part payment of Rs.18,000/ leaving
outstanding balance of Rs.4,01,310/ as on 16/2/2017. Despite
repeated demands the defendant No.1 failed and neglected to clear the
outstanding dues. On 28/6/2017 defendant has made part payment of
Rs.52,200/ leaving outstanding balance of Rs.3,69,740/ as on
28/6/2017.
5. The said term loan account categorized as Non Performing
Assets on 31/7/2017 with outstanding balance of Rs.3,79,843/.As per
statement of account due and payable amount in the term loan account
is Rs.5,34,356/ as on 21/10/2019.
6. Defendant No.1 vide application dtd.6/11/2013 applied for
credit card facility for sum of Rs.1,00,000/. Plaintiff has sanctioned the
said facility to the defendant No.1. As on 21/01/2017 sum of
Rs.1,04,242/ was outstanding in the same credit card facility account.
On 16/2/2017 defendant made payment of Rs.5,000/. Inspite of
repeated demands, defendant No.1 failed to make payment of the
outstanding sum in the credit card account. On 28/6/2017 defendant
made card payment of Rs.71,300/ in the credit card account leaving
outstanding sum of Rs.41,396/. Thereafter defendant has not made
payment in the said account. The said account categorized NPA. On
31/10/2019 with outstanding sum of Rs.82,979/.
7. Plaintiff has sent notice dtd.2/8/2017 to defendant No.1 to
regularize the said term loan facility. Defendants has not given any
reply to the notice. Plaintiff has again sent demand notice dtd.5/2/2018
to the defendants for outstanding sum of Rs.4,09,998/. Defendants did
not give reply. On 30/7/2018 plaintiff sent recall notice for sum of
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4 Comm. Suit No.4172020
Rs.4,36,348/ in term loan account and Rs.58,139/ in credit card
account. But defendants neglected to pay the outstanding amount.
Hence, this suit.
8. Defendant Nos.1 and 3 appeared through advocate but
they have not filed written statement. Hence, suit proceeded without
written statement against them. Defendant No.2 died on 26/10/2020.
As per order dtd.2/2/23 his name deleted from the array defendants.
9. On above facts following points arise for determination of
this court and recorded findings thereon for the reasons stated as under.
POINTS FINDINGS
1. Does plaintiff prove that it has sanctioned
term (personal consumption) credit facility
of Rs.5,00,000/ and credit card facility of
Rs.1,00,000/ to the defendant No.1?
…Yes
2. Does plaintiff prove that defendant No.1 is
in outstanding sum of Rs.5,34,356/ in
term loan account and Rs.82,979/ in
credit card account ?
…Yes
3. Whether plaintiff is entitled for the relief
claimed ?
…Yes
4. What order and decree? ...As per final
order.
REASONS
AS TO POINT Nos.1 TO 4 :
10. Heard learned counsel of plaintiff. Plaintiff has examined
its Senior Executive (PW1 Mohd. Ayoub Dar) to prove its case. He has
reproduced all content of plaint in his chiefexamination. His evidence
is supported by documentary evidence : sanction letter
dtd.23/03/2016, demand promissory note dtd.28/3/2016, loan
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5 Comm. Suit No.4172020
agreement dtd.28/3/2016, affidavit dtd.28/3/2016, letter of
undertaking, authority letter, letter of guarantee, statement of account
of both account, certificate under the provisions of Bankers Book of
Evidence Act, demand notice dtd.2/8/17, 5/2/2018 and 11/4/2018
and 30/7/2018, (Exh.13 to 24 respectively).
11. In view of evidence of PW1 and documentary evidence, it
becomes clear that on the request of defendant on 2/3/2016 plaintiff
has sanctioned him term (personal consumption) loan facility of
Rs.5,00,000/ with interest @ 15.25 % p.a. with monthly rests. At the
time of sanctioning the said loan defendant No.1 has executed above
documents and defendant Nos.2 and 3 executed guarantee deed. As the
said term loan account become irregular the plaintiff has categorized it
in NPA. Defendant No.1 has also aware credit card facility of
Rs.1,00,000/ on 6/11/2013. As on the date of suit defendant is in
outstanding sum of Rs.5,34,356/ in term loan account and
Rs.82,979/.
12. Evidence of PW1 remained unchallenged. His evidence is
supported by documentary evidence mentioned in para supra. There is
no reason to disbelieve his testimony. Hence, plaintiff succeed to prove
that it has advanced above mentioned term loan and credit card facility
to defendant No.1 with conditions. The amount mentioned in para
supra is due and payable by defendant Nos.1 and 3 jointly and
severally. Therefore, plaintiff is entitled for the recovery of the same.
Hence, I answered point Nos.1 to 3 as above. Hence, I pass the
following order.
ORDER
1. Suit is decreed with costs.
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6 Comm. Suit No.4172020
2. The defendant Nos.1 and 3 are jointly and severally
directed to pay to plaintiff the amount of Rs.5,34,356/
and interest @ 15.25% p.a. on principal sum of
Rs.3,74,843/ from the date of suit till realisation of
amount.
3. The defendant No.1 is directed to pay to plaintiff the
amount of Rs.82,979/ and interest @ 24% p.a. on
principal sum of Rs.42,105/ from the date of suit till
realisation of amount.
4. Decree be drawn up accordingly.
Date : 27/4/2023.
(N.P. Tribhuwan)
Judge, City Civil Court,
Mumbai. C.R.No.32
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7 Comm. Suit No.4172020
Direct dictated on : 27/4/2023
Checked on : 27/4/2023
Signed on : 27/4/2023
CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER”
28/4/2023 Mrs.Rupali S. Bhor
UPLOAD DATE AND TIME NAME OF STENOGRAPHER
Name of the Judge(with CR No.) HHJ SHRI. N. P. TRIBHUVAN
(C.R.No.32)
Date of pronouncement of Order 27/4/2023
Order signed by P.O. on 27/4/2023
Order uploaded on 28/4/2023
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