Bangalore District Court
Bank As Security For The Aforesaid Cash ... vs Was Due A Sum Of Rs. 5 on 8 February, 2023
15
COM.O.S.793/2022
IN THE COURT OF LXXXII ADDL.CITY CIVIL & SESSIONS JUDGE,
AT BENGALURU (CCH.83)
THIS THE 8th DAY OF FEBRUARY 2023
PRESENT:
SMT. SUMANGALA S BASAVANNOUR.,B.COM,L.L.M.,
LXXXII ADDL.CITY CIVIL & SESSIONS JUDGE,
BENGALURU.
Com.O.S.No.793/2022
BETWEEN:
The Jammu and Kashmir
Bank Limited, A Banking
Company established
under the J & K Companies
Act, 1977, Branch Office at
No. 70/1, Dr. Brownamma
Towers, Mission Road,
Bangalore - 560 027,
Represented by its
Manager and GPA Holder,
Smt. Seema Koul
: PLAINTIFF
(Represented by M/s
Susheel Associates -
Advocates)
AND
1. M/s. Heemakshi
Communication, A
Proprietary concern
Having its place of
business at No.4,
15
COM.O.S.793/2022
M.M.Plaza, Shop No.1, 1 st
Cross, S.P.Road,
Bangalore-560 002,
Represented by its
Proprietor.
Mr.Pukhraj, S/o.
Rangaram, Aged Major,
R/o.Bhagal Bhim, Jalor,
Rajasthan-343029.
Presently at No.H-14/11,
4th Floor, Flat No.401,
G.R.Lane Kumbarpet,
S.P.Road Cross, Bangalore-
02.
2. Mr. Kalaram Purohit,
S/o. Sawlaram, Aged
Major, R/o. No.20/1, 2nd
Floor, Nagrethpet Cross,
Ganigara 'C' Lane,
Maldarpet, Bangalore-02.
3. Mr. Rajesh Kumar
Purohit, S/o. Mr.Vagtaji
Purohit, Aged Major, R/o.
No.54, 3rd Cross,
Cubbonpet, Bangalore-02.
: DEFENDANTS
(Defendants are placed
exparte as per order dated
23.01.2023)
15
COM.O.S.793/2022
Date of Institution of the
04.06.2022
suit
Nature of the suit (suit on
pronote, suit for
Suit for recovery of money
declaration & Possession,
Suit for injunction etc.)
Date of commencement of 30.01.2023
recording of evidence
Date on which judgment 08.02.2023
was pronounced
Total Duration Year/s Month/s Day/s
00 08 04
(SUMANGALA S BASAVANNOUR),
LXXXII Addl.City Civil & Sessions Judge,
Bengaluru.
JUDGMENT
This suit is filed by the Plaintiff Bank for recovery of Rs.6,12,868.88 along with future interest at 16.25% per annum from the date of the suit till the date of realization.
2. The Brief facts of the Plaint are as follows:-
The Defendant No.1 approached the Plaintiff Bank during August 2018 and requested for financial assistance, by way of cash credit in order to carry on its business and further the said financial assistance was sought for working capital and 15 COM.O.S.793/2022 st accordingly the 1 Defendant through its proprietor submitted all relevant documents including KYC in order to facilitate the bank to sanction the said cash credit facility based on the documents furnished by the 1st Defendant. Based on the documents produced by the 1st Defendant the Plaintiff Bank sanctioned the cash credit facility of Rs. 5,00,000/- to the 1 st Defendant on 18.08.2018 to the 1 st Defendant as per the terms and conditions mentioned in the said sanction letter. The sanction letter categorically mentioned that the said credit facility is sanctioned for a period of one year subject to renewal and the primary security being hypothecation of stocks/books debts/ movables and collateral security of two persons accordingly the Defendant No.1 through its proprietor executed a on demand promissory note, loan agreement, hypothecation agreement and other relevant documents on 18.08.2018 in order to secure the aforesaid loan and further the Defendant No. 2 and 3 executed Deed of Guarantee in favour of the Plaintiff Bank as security for the aforesaid cash credit facility of Rs. 5,00,000/-. The aforesaid cash credit facility was sanctioned to the 1st Defendant on the terms that the rate of interest would be (1 year MCLR+ 3.50%) = 12.30% per annum with monthly rests and the said facility being renewed once in a year which were duly agreed by the Defendant herein. On 18.08.2018, the account was opened and the said cash credit facility was 15 COM.O.S.793/2022 st provided to the 1 Defendant started operating the same. The 1st Defendant initially paid the interest regularly and maintained the account properly and routed all the receipts from his customers through the aforesaid account. The Defendant No.1 became irregular with regard to the aforesaid cash credit facility and as a matter of fact the Defendant No.1 failed to repay the amount and the interest payable on the said cash credit facility and accordingly on 31.03.2021, the said account was declared as non-performing account and as on that date the 1 st Defendant was due a sum of Rs. 5,72,720.88. Inspite of making repeated requests and demands, the 1st Defendant has failed and neglected to pay the outstanding amount and as a matter of fact a notice was duly issued by the Plaintiff on 08.04.2021 to the Defendants herein and inspite of receiving the same, the Defendant has made no payments towards the outstanding loan amount. The Defendant No.1 has made the last payment on 20.02.2020, which amounts to acknowledging the loan raised from the Plaintiff Bank and accordingly the suit is in time. As there was no reply to the notice sent by the Bank nor any payment has been made to the loan account. The Defendants inspite of receiving the said notice, the Defendants neither paid the outstanding amount nor replied to the said notice.15
COM.O.S.793/2022
3. Inspite of service of summons, the Defendants have not appeared before this court, hence the Defendant No. 1 to 3 are placed exparte as per order dated 23.01.2023.
4. The Plaintiff has examined PW-1 and got marked Ex.P.1 to Ex.P.24. I have heard the arguments of the Advocate for the Plaintiff.
5. Based on the above pleadings of the Plaintiff, the following points arise for my consideration :-
1. Whether the Plaintiff is entitled for the Suit Claim from the Defendant ?
2. What Order ?
6. My findings on the above Points are as under:
1. Point No.1 :- In the Partly Affirmative.
2. Point No.2 :- As per the final Order for the following reasons.
REASONS
7. Point No.1 :- The Plaintiff Bank substantiate of this case examined its Manager, Nissar Ahmad Zargar as PW.1. PW.1 in his evidence reiterated averments of the Plaint, and got marked Ex.P.1 to Ex.P.24.
15COM.O.S.793/2022
8. In the decision reported in A.I.R. - 2000 - Karnataka - 234 (Syed Ismail vs. Smt. Shamshia Begum), the Hon'ble High Court of Karnataka has held as follows :-
"3. The impugned order does not disclose the nature of pleading placed by the plaintiff and whether there is prima facie material to grant a decree in his favour. A judgement in favour of the plaintiff is not automatic. The Court has to consider the case of the plaintiff and grant a decree in his favour. The learned trial Judge has not referred to the pleadings of the plaintiff and the documents produced by him to substantiate even a prima facie case for grant of a decree in his favour. Therefore, the judgement and decree in favour of the plaintiff is not automatic on failure of the opposite party to put his defence. The Court can grant a judgement in favour of the party only upon consideration of the case of the plaintiff including appreciation of pleadings and evidence."
9. The averments of the Plaint, evidence of PW.1 and Ex.P.2 to Ex.P8 discloses that Defendant No.1 approached the Plaintiff Bank during August 2018 and requested for financial assistance, by way of cash credit in order to carry on its business and further the said financial assistance was sought for working capital and accordingly the 1 st Defendant through its proprietor submitted all relevant documents including KYC in 15 COM.O.S.793/2022 order to facilitate the bank to sanction the said cash credit facility based on the documents furnished by the 1 st Defendant. Based on the documents produced by the 1 st Defendant the Plaintiff Bank sanctioned the cash credit facility of Rs. 5,00,000/- to the 1st Defendant on 18.08.2018 to the 1 st Defendant as per the terms and conditions mentioned in the said sanction letter.
10. The Defendant executed several documents i.e., Borrower statement at Ex.P.2, Guarantor statement at Ex.P.3 and Ex.P.4, Loan sanction letter dated 18.08.2018 at Ex.P.5, renewal letter at Ex.P.6 and office copy of recall notice at Ex.P.8.
11. The Defendant No. 2 and 3 executed Deed of Guarantee in favour of the Plaintiff Bank as security for the aforesaid cash credit facility of Rs. 5,00,000/-. The aforesaid cash credit facility was sanctioned to the 1st Defendant on the terms that the rate of interest would be (1 year MCLR+ 3.50%) = 12.30% per annum with monthly rests and the said facility being renewed once in a year which were duly agreed by the Defendant. On 18.08.2018, the account was opened and the said cash credit facility was provided to the 1 st Defendant started operating the same.
12. Further the Defendant has also executed several documents i.e., loan agreement at Ex.P.10, Hypothecation 15 COM.O.S.793/2022 agreement at Ex.p.11, Demand promissory note at Ex.p.12, Deed of guarantee at Ex.P.13, Letter of continuity at Ex.P.14, Letter of undertaking at Ex.P.15, Irrevocable power of attorney at Ex.P.16, Affidavit of borrower at Ex.P.17, Trust receipt at Ex.p.18, Letter of waiver of notice at Ex.P.19, Letter of autority of appropriation on lien and set off at Ex.P.20, Letter of consent at Ex.P.21, Letter of confirmation by the borrower at Ex.P.22 and Letter of confirmation by the guarantee by guaranter at Ex.P.23.
13. The 1st Defendant initially paid the interest regularly and maintained the account properly and routed all the receipts from his customers through the aforesaid account. The Defendant No.1 became irregular with regard to the aforesaid cash credit facility and as a matter of fact the Defendant No.1 failed to repay the amount and the interest payable on the said cash credit facility and accordingly on 31.03.2021, the said account was declared as non-performing account.
14. Inspite of making repeated requests and demands, the 1 st Defendant has failed and neglected to pay the outstanding amount and as a matter of fact a notice was duly issued by the Plaintiff on 08.04.2021 to the Defendants herein and inspite of receiving the same, the Defendant has made no payments towards the outstanding loan amount. The Defendant No.1 has made the last payment on 20.02.2020, which amounts to 15 COM.O.S.793/2022 acknowledging the loan raised from the Plaintiff Bank. The Defendants inspite of receiving the said notice, the Defendants neither paid the outstanding amount nor replied to the said notice.
15. Ex.P.24 the statement of account speaks to the effect that total amount payable towards principle amount of Rs. 5,20,995.10/-. Further the Plaintiff Bank calculated the interest amount outstanding of Rs. 91,873.78. The plaintiff claimed the interest at the rate 16.25% per annum. However by considering the interest prevailing, it is proper to award interest @ 10% per annum from the date of suit.
16. The above mentioned transactions commenced from august 2018 and the letter of renewal dated 24.02.2020 at Ex.P.6 and the suit filed on 04.06.2022 is within the limitation period.
17. In this case in spite of paper publication, the Defendant is not appeared and denied the claim of the Plaintiff. Hence, it shows the Defendants admitted the case of the Plaintiff. The evidence of PW.1 and Ex.P.1 to Ex.P.24 are remained unchallenged. Therefore, the Plaintiff is entitle for recovery of the suit claim amount of Rs. 6,12,868.88/- with future interest @ 10% per annum from the date of suit till realization of the entire amount. Hence, I answer this Point in " Partly 15 COM.O.S.793/2022 Affirmative".
18. Point No.2 : -Therefore, I proceed to pass the following Order.
ORDER The Suit of the Plaintiff is decreed in part with cost.
The Defendants are hereby directed to pay Rs. 6,12,868.88 to the Plaintiff, together with interest at the rate of 10% per annum from the date of suit till realization.
Draw Decree accordingly.
The Office is directed to send copy of this Judgment to Plaintiff and Defendant to their email ID as required under Order XX Rule 1 of the Civil Procedure Code as amended under Section 16 of the Commercial Courts Act.
( Dictated to the Stenographer, typed by her directly on computer, verified and then pronounced by me in open Court on this the 8th day of February, 2023).
(SUMANGALA S BASAVANNOUR), LXXXII Addl.City Civil & Sessions Judge, Bengaluru.
15COM.O.S.793/2022 ANNEXURE LIST OF WITNESSES EXAMINED ON BEHALF OF THE PLAINTIFF PW-1 Nissar Ahmad Zargar LIST OF DOCUMENTS EXHIBITED ON BEHALF OF THE PLAINTIFF Ex.P.1 Loan application Ex.P.2 Borrower statement Ex.P.3 Guarantor statement Ex.P.4 Guarantor statement Ex.P.5 Loan sanction letter dtd.18.08.2018 Ex.P.6 Renewal letter dtd.24.02.2020 Ex.P.7 Letter issued by the defendant Ex.P.8 Office copy of recall notice dtd.08.04.2021 Ex.P.9 and Ex.P.9 (a) Unserved RPAD cover and notice. Ex.P.10 Loan agreement dtd.24.08.2018 Ex.P.11 Hypothication agreement dtd.24.08.2018 Ex.P.12 Demand Promissory note dtd.24.08.2018 Ex.P.13 Deed of guarantee dtd.24.08.2018 Ex.P.14 Letter of continuity dtd.24.08.2018 Ex.P.15 Letter of undertaking dtd.24.08.2018 Ex.P.16 Irrevocable power of attorney Ex.P.17 Affidavit of borrower Ex.P.18 Trust receipt Ex.P.19 Letter of waiver of notice dtd.24.08.2018 Ex.P.20 Letter of authority of appropriation of lien and set off dtd.24.08.2018 Ex.P.21 Letter of consent dtd.24.08.2018 15 COM.O.S.793/2022 Ex.P.22 Letter of confirmation by the borrower dtd.24.08.2018 Ex.P.23 Letter of confirmation of guarantee by guarantor dtd.24.08.2018 Ex.P.24 Statement of account with certificate LIST OF WITNESSES EXAMINED ON BEHALF OF THE DEFENDANT NIL LIST OF DOCUMENTS EXHIBITED ON BEHALF OF THE DEFENDANT NIL (SUMANGALA S BASAVANNOUR), LXXXII Addl.City Civil & Sessions Judge, Bengaluru.