Final Order 2

Order Details: Copy of Judgment
Pdf Text: COMMERCIAL SUIT NO.271/2019 1
MHCC010136322019
Received on : 27-11-2019
Registered on : 19-12-2019
Decided on : 02-03-2020
Duration : 00Y 03M 06D
IN THE CITY CIVIL COURT AT MUMBAI
COMMERCIAL SUIT NO. 271 of 2019
( CNR NO.: MHCC01-013632-2019)
Karnavati Finance Limited, a company
registered under the provisions of the
Companies Act, 1956, having its registered
office at 705, Palm Spring Centre, Link Road,
Malad West, Mumbai- 400 064. ...Plaintiff
Versus
1. Sukhwantkaur Bhoi,
Age: 70years, Occupation: N/A,
Residing at 304, C-wing, Sai Ashish
Building, Opp. Santoshi Mata Mandir
Village Road, Bhandup(W),
Mumbai- 400078.
2. Lakhwinder Singh Bhoi,
Age: 37 years
Residing at Flat No.9, 4th floor,
Ramesh CHSL, Near Bhatia Hospital,
Village Road, Bhandup West,
Mumbai-400 078.
3. Ranjit Kaur L Bhoi,
Age: 38 years
Residing at Flat No.9, 4th floor,
Ramesh CHSL, Near Bhatia Hospital,
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COMMERCIAL SUIT NO.271/2019 2
Village Road, Bhandup West,
Mumbai-400 078. ….Defendants
Appearances:-
Advocate Sheetal Shah for Plaintiff.
Defendants Ex-parte.
CORAM : HIS HONOUR JUDGE
DEEPAK L. BHAGWAT
(C.R.NO.28)
DATE : 02nd March 2020
J U D G M E N T
1. This is Commercial Suit for recovery of Rs.16,76,000 /-(Rupees
Sixteen Lakhs Seventy Six Thousand only) with pendente lite and future
interest at the rate of 2.4% p.m., with further Rs.15,00,000/-towards
hardship and legal costs at if the defendants failed to pay said amount
then the suit property be ordered to be sold and the sale proceeds be
utilized towards satisfaction of the claim of plaintiff.
2. According to the plaintiff, it is a non banking financial company
registered under the Companies Act. The Reserve Bank of India has
granted certificate of registration to the plaintiff on 24/02/1998 to
carry on business of non banking financial institution. On the
application made by defendant No.1 on 26/04/2017, the plaintiff
sanctioned loan of Rs.10,00,000/- to defendant No.1. Defendants No.2
and 3 stood as guarantor of defendant No.1. Defendant No.1 executed
loan agreement, equitable mortgage by deposit of title deeds in respect
of his flat No.9 in 'Ramesh CHSL', Bhandup, Mumbai, declaration dated
12/05/2017. Defendants No.2 & 3 also executed Guarantee Deed dated
27/10/2017. As per the agreement the defendants were jointly and
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COMMERCIAL SUIT NO.271/2019 3
severally liable to pay amount of Rs.24,000/- towards interest
component and the payment towards principal amount was to
commence after 15 months of execution. Defendant No.1 made
payment of Rs.24,000/- upto and for August 2017. However, thereafter,
cheque issued by defendant No.1 in respect of payment for September
2017 was dishonoured. Vide letter dated 03/10/2017, notice dated
27/01/2018 and legal notice dated 21/02/2018. The plaintiff informed
about the default to the defendant and also informed that the plaintiff
would be left with no option but to sell the mortgaged property and
recover the amounts due. Towards part payment defendant No.1 issued
cheque dated 14/03/2018 for Rs. 1,44,000/- which came to be
dishonoured. On 25/10/2016 defendant No.1 issued a cheque for
Rs.16,76,000/- towards repayment of loan with interest accrued till
25/10/2019. However, same cheque also came to be dishonoured. Vide
letter dated 22/11/2019 defendants No.2 &3 were also called upon to
pay the amountas guarantors. However, they also did not make
payment. Therefore, the plaintiff claimed decree for recovery of
Rs.16,76,000/- with further interest @ 2.4%p.a. from 25/10/2019 till
realization of amount, and for Rs. 15,00,000/- towards legal costs and
for order to sale the suit flat and to pay the sale proceeds to the
plaintiff. Hence, this suit.
3. Despite service of summons the defendants failed to appear.
Therefore, suit proceeded Ex-parte against the defendants.
4. Considering the material on record and submissions made on
behalf of the plaintiff points arise for determination along with my
findings thereon for the reasons recorded are as under:-
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COMMERCIAL SUIT NO.271/2019 4
POINTS FINDINGS
1. Whether the plaintiff is entitled to
recovery of amount of Rs.1676,000/-?
In the Affirmative
2. At what pendente lite and future
interest ?
At 18% p.a.
3. To what amount the plaintiff is
entitled to amount towards hardship
and legal costs?
Amount of Rs.1,50,000/-,
4. Whether the plaintiff is entitled to
order to sell the suit flat and for the
proceeds of the same?
In the affirmative.
5. What order and decree? As per final order
REASONS
AS TO POINTS NO.1 to 3:
5. The plaintiff examined its Sr. Executive Officer P. W.1 Nilesh at
Exh.9. His testimony speaks that on the application of defendant No.1
loan of Rs.10,00,000/- was sanctioned to him by the plaintiff and
defendants No.2 &3 stood as guarantors for the same. The defendant
No.1 executed the loan agreement, mortgage deed mortgaging his flat.
Defendants No.2 & 3 executed guarantee deed. As agreed, defendants
were jointly and severally liable to pay a sum of Rs.24,000/- towards
interest component and payment towards principal amount was to
commence after 15 months. Defendant No.1 made payment till August
2017, however, cheque towards payment for September 2017 came to
be dishonoured. Thereafter, defendant No.1 issued cheque of
Rs.1,44,000/- towards part payment. However, it was also dishonoured.
Again defendant No.1, on 25/10/2019 issued a cheque for
Rs.16,76,000/-, which also came to be dishonoured. There is no cross
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COMMERCIAL SUIT NO.271/2019 5
examination to the testimony of P.W.1 Nilesh. Thus, his testimony is
unchallenged and as such, reliable.
6. The documents that is Mortgage deed dated 12/05/2017,
Guarantee agreement dated 12/05/2017, Sanction letter dated
09/05/2017 show that the plaintiff given loan of Rs.10,00,000/- to
defendant No.1 repayable with interest @ 2.4% p.a., and defendants
No.2 & 3 stood as guarantors for repayment of the loan. And undated
letter issued by defendant No.1 to the plaintiff is also produced on
record. By same letter defendant No.1 requested the plaintiff to grant
time till 31/05/2019 to clear all the due and payable amount. Thus, the
documents on record also corroborate testimony of P.W.1 Nilesh. In view
of this evidence, it has to be held that the plaintiff succeeded to prove
that amount of Rs.16,76,000/- is due and payable by defendant No.1 to
3 jointly and severally. It is also proved that defendant No.1 mortgaged
his flat for securing the loan. In these circumstances, the plaintiff is
entitled to recovery of amount of Rs.16,76,000/-. Considering over all
circumstances it is just and proper to grant pendente lite and future
interest @ 18% p.a.. Further it is just and proper to order sale of the
mortgaged property towards recovery of the amount of Rs.16,76,000/-
with pendente lite and future interest. Although the plaintiff claimed
amount of Rs.15,00,000/- towards hardship and legal costs, considering
the court fees paid, the nature of the claim, the fact that the suit
proceeded ex-parte and the plaintiff will be entitled to refund of certain
court fees, it is just and proper to grant amount of Rs. 1,50,000/-
towards the cost of the suit. Hence, point No.1 is answered in the
affirmative, point No.2 is answered as 18% p.a., point no.3 is answered
as Rs.1,50,000/-, point No.4 is answered in the affirmative. In answer
to point No.5 order as follows is passed:-
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COMMERCIAL SUIT NO.271/2019 6
ORDER
1. The suit is ex-parte decreed as under:-
2. Defendants No.1 to 3 jointly and severally shall pay to the
plaintiff amount of Rs.16,76,000/- (Rupees Sixteen Lakhs Seventy Six
Thousand only) with simple interest @ 18% p.a. on the principal
amount of Rs.10,00,000/- from the date of suit till realization of the
amount.
3. Defendants No.1 to 3 jointly and severally shall further pay to the
plaintiff amount of Rs.1,50,000/- towards the costs of this suit.
4. The suit flat No.9 situated on 4th floor, Ramesh CHSL near Bhatia
Hospital, Village Road, Bhandup(W), Mumbai, be sold and the sale
proceeds received from the same be utilized towards satisfaction of the
decretal amount.
5. Court fees be refunded to the plaintiff as per rules.
6. Decree be drawn up accordingly.
(Deepak L. Bhagwat)
Ad-Hoc Judge,
Date:02/03/2020 City Civil Court,Gr. Mumbai
Dictated on : 02/03/2020
Signed on : 05/03/2020
CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL SIGNED
JUDGMENT/ORDER.”
14/03/2020 at 11.40p.m. Mrs.J.V.Pawar
UPLOAD DATE AND TIME NAME OF STENOGRAPHER
Name of the Judge (With Court Room No.) HHJ Shri.D.L.Bhagwat
(C.R.NO.28)
Date of pronouncement of Judgment/Order 02/03/2020
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Judgment/Order signed by P.O. on 05/03/2020
Judgment/Order uploaded on 14/03/2020
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