Bangalore District Court
Bank As Agreed And As Such vs To The Plaintiff Bank on 1 December, 2016
IN THE COURT OF THE SMALL CAUSES, AT BANGALORE
(SCCH-7)
Dated this, the 1st day of December, 2016.
Present : SMT. INDIRA MAILSWAMY CHETTIYAR
B.Com.,LL.B.(Spl.,),L.L.M.,
IX Addl. Small Causes Judge & XXXIV ACMM,
Court of Small Causes,
Member, MACT-7, Bangalore.
S.C.No.1491/2016
Syndicate Bank, : ..... PLAINTIFF
Rajajinagar,
II Stage Branch,
No.J-652, 1st Floor,
Dr. Rajkumar Road,
Near Navarang Talkies,
Rajajinagar 2nd Stage,
Bengaluru - 560 010.
Represented by its Branch
Manager.
(By Sri. M.R. Shashidhar, Adv.,)
V/s
Sri. Lokesh. K.M., : ..... DEFENDANT
S/o. Muniramaiah,
Major,
No.411, 8th Stage,
2nd Block,
Basaveshwaranagar,
Near Cormel School,
Bengaluru - 560 079.
SCCH-7 2 S.C.No.1491/2016
(Exparte)
1. Date of Institution : 19.08.2016
2. Nature of Suit : Recovery of Money
3. Date of Evidence : 07.11.2016
4. Date of Judgment : 01.12.2016
5. Total duration : YEAR/S MONTH/S DAYS
00 03 12
(INDIRA MAILSWAMY CHETTIYAR)
IX Addl. Small Causes Judge & XXXIV ACMM,
Court of Small causes,
Member, MACT-7, Bangalore.
JUDGMENT
The Plaintiff Bank has filed this suit as against the Defendant for recovery of Rupees 1,64,225-30 from the Defendant with interest at the rate of 12.85% p.a., compounded monthly from the date of the suit till the date of realization in full and typing charges under Order XX-A of C.P.C. and costs.
2. The brief averments of the Plaintiff Bank's case are as follows;
a) It is a Body Corporate constituted under the Banking Companies (Acquisition and Transfer of Undertakings) Act of 1970, having its Head Office at Manipal, Udupi District - 576104 SCCH-7 3 S.C.No.1491/2016 and inter-alia having its Branch at 2nd Stage, Rajajinagar, Bengaluru - 10, represented by its Branch Manager.
b) The Defendant approached it seeking financial assistance for the purpose of purchase of Auto Rickshaw as per his Application dated 16.12.2011.
c) On consideration of the application, it sanctioned the Vehicle Loan of Rupees 1,25,000/- for purchase of Auto Rickshaw In pursuant to the sanction of loan of Rupees 1,25,000/- under A/c No.201/87664 and on availing the loan, the Defendant executed a Compostie Hypothecation Agreement on 19.12.2011, hypothecating the Kind LC LPG 4 Stroke Auto Rickshaw to be purchased, as a security for the loan. Under the said Agreement, the Defendant has agreed to repay the loan of Rupees 1,25,000/- in 60 equal monthly installment of Rupees 2,910/- commencing from 31.12.2011 and the last installments being due on or before 31.12.2016, along with interest at 14% p.a., subject to variation in the rate of interest from time to time as per the direction of the Reserve Bank of India or as per the Prime Lending Rate fixed by it. The Defendant has also agreed to pay overdue interest as per the rate in force along with inspection charges, incidental charges and legal charges in case of default in repayment of installment. The Defendant has agreed that, the agreement is to operate as continuing security for the ultimate balance with interest thereon to become payable upon the said account. Under the terms of the Agreement, it is at liberty to exercise the right of lien upon the SCCH-7 4 S.C.No.1491/2016 accounts maintained by the Defendant and the Bank is at liberty to seize and remove the hypothecated vehicle in case of default in payment. Further, it is at liberty to disclose the information to the RBI or Credit Information Bureau in case of committing default in repayment. The Defendant has executed the composite Hypothecation Agreement agreeing the terms and conditions enumerated therein.
d) The Defendant has executed Acknowledgment Receipt on 19.12.2011 for having received a sum of Rupees 1,25,000/- in full as proceeds of the loan sanctioned to him in terms of the loan document.
e) The Defendant has failed to keep up the repayment schedule and he has committed default in repayment. It has issued Legal Notice to Defendant on 13.07.2016 calling upon him to pay the outstanding liability as indicated therein. In spite of the receipt of notice, the Defendant has failed to repay the debts.
f) The Defendant is now due in following sum;
i. Principal plus interest, charges
up to 18.08.2016 Rs. 1,64,225-30
g) The Defendant is liable to pay the said outstanding
dues to it.
SCCH-7 5 S.C.No.1491/2016
h) A complete statement of account extract of account
maintained in the usual and ordinary course of Banking business and duly certified by the Manager as required under the Bankers Book Evidence Act.
i) The suit transaction being a commercial transaction, the Defendant is liable to pay future interest at 12.85% from the date of the suit till the date of realization.
j) The suit is in time.
k) No other suit or proceedings concerning the subject-
matter of the suit is pending before any other Courts on the same cause of action. Hence, pleading cause of action, the Plaintiff Bank has filed the present suit.
3. Though the suit summons was duly served on the Defendant through paper publication, he was remained absent and hence, he is placed as exparte on 02.11.2016.
4. In order to prove its case, the Plaintiff Bank has examined its Branch Manager as P.W.1 by filing an affidavit as his examination-in-chief and has placed reliance upon Ex.P.1 to Ex.P.6.
5. Heard the arguments.
SCCH-7 6 S.C.No.1491/20166. Now, the Points that arise for my consideration are as follows;
POINTS
1. Whether the Plaintiff Bank is entitled for a sum of Rupees 1,64,225-30 with current and future interest at the rate of 12.85% p.a., compounded monthly from the date of the suit till its realization and typing charges and costs, from the Defendant as prayed for?
2. What Order?
7. My answers to the above Points are as follows;
Point No.1 : Partly in the Affirmative, Point No.2 : As per the final Order, for the following;
REASONS
8. POINT NO.1 :- The Plaintiff Bank has filed this suit as against the Defendant for recovery of Rupees 1,64,225-30 from the Defendant with interest at the rate of 12.85% p.a., compounded monthly from the date of the suit till the date of realization in full and typing charges under Order XX-A of C.P.C. and costs.
SCCH-7 7 S.C.No.1491/20169. The P.W.1, who is a Branch Manager of the Plaintiff Bank, has stated in his examination-in-chief that, the Defendant approached their Bank seeking financial assistance for the purpose of purchase of Auto Rickshaw. He has further stated that, in pursuant to the sanction of loan of Rupees 1,25,000/- under A/c No.0408-201/87664 and on availing the loan, the Defendant has executed a Composite Hypothecation Agreement on 19.12.2011, hypothecating the TVS King 4 Stroke Auto Rickshaw to be purchased, as a security for the loan and under the said Agreement, the Defendant agreed to repay the loan of Rupees 1,25,000/- in 60 equal monthly installment of Rupees 2,910/-, commencing from 31.12.2011 and the last installment being due on or before 31.12.2016, along with interest at 14% p.a., subject to variation in the rate of interest from time to time as per the direction of the Reserve Bank of India or as per the Prime Lending Rate fixed by their Bank. He has further stated that, the Defendant has also agreed to pay overdue interest as per the rate in force along with inspection charges, incidental charges and legal charges in case of default in repayment of installment and the Defendant has agreed that, the Agreement is to operate as continuing security for the ultimate balance with interest thereon to become payable upon the said account and under the terms of the Agreement, their Bank is at liberty to exercise the right of lien upon the accounts maintained by the Defendant and their Bank is at liberty to seize and remove the hypothecated vehicle in case of default in payment. He has further stated that, their Bank is at liberty to disclose the information to the RBI or Credit Information Bureau and the Defendant has executed the Composite SCCH-7 8 S.C.No.1491/2016 Hypothecation Agreement agreeing to the terms and conditions enumerated therein. He has further stated that, the Defendant has executed Acknowledgment Receipt on 19.12.2011 for having received a sum of Rupees 1,25,000/- in full as proceeds of the loan sanctioned to him in terms of the loan document.
10. To corroborate its case as well as the oral version of P.W.1, the Plaintiff Bank has produced Ex.P.1 Loan Application dated 16.12.2011, Ex.P.2 Composite Hypothecation Agreement dated 19.12.2011 and Ex.P.3 Acknowledgment Receipt dated 19.12.2011.
11. On perusal of the contents of the said Ex.P.1 to Ex.P.3, it clearly goes to show that, the Defendant has borrowed a loan of Rupees 1,25,000/- from the Plaintiff Bank for the purpose of purchase of Auto Rickshaw and he has agreed to repay the said loan with interest at the rate of 14% p.a., subject to variation in the rate of interest from time to time as per the direction of the Reserve Bank of India or as per the Prime Lending Rate fixed by the Plaintiff Bank, in 60 equal monthly installment of Rupees 2,910/- commencing from 31.12.2011 and the last installment being due on or before 31.12.2016 and by agreeing the terms and conditions of the loan, the Defendant has executed the required and necessary documents in favour of the Plaintiff Bank.
12. The P.W.1 has stated that, the Defendant has failed to keep up the repayment schedule and he has committed default in SCCH-7 9 S.C.No.1491/2016 repayment and their Bank has issued a Legal Notice to Defendant on 13.07.2016 calling upon him to pay the outstanding liability as indicated therein and in spite of the receipt of notice, the Defendant has failed to repay the debts. He has further stated that, the Defendant is now due principal plus interest, charges up to 18.08.2016, a sum of Rupees 1,64,225-30 and the Defendant is liable to pay the said outstanding dues to their Bank. He has further stated that, a complete statement of account extract of account maintained in the usual ordinary course of banking business and duly certified by the Manager as required under Bankers Books Evidence Act.
13. The Plaintiff Bank has produced Ex.P.4 Office Copy of Legal Notice dated 12.07.2016 along with Postal Receipt, Ex.P.5 Returned Unserved Postal Cover and Ex.P.6 Statement of Account.
14. On perusal of the entries made in Ex.P.6 Statement Account, it clearly goes to show that, the Defendant is very irregular in making repayment of the loan installments to the Plaintiff Bank as agreed and as such, as on 18.08.2016, a sum of Rupees 1,64,225-30 including up to date interest is due from him to the Plaintiff Bank, which is the suit claim.
15. On perusal of the contents of Ex.P.4 and Ex.P.5, it is further made crystal clear that, before filing the present suit, the Plaintiff Bank has made a prompt efforts for recovery of the loan due from the Defendant by issuing a Legal Notice through RPAD, SCCH-7 10 S.C.No.1491/2016 but, inspite of that, the Defendant did not care either to repay the outstanding loan amount or issued a reply to the Plaintiff Bank. Hence, the Plaintiff Bank as no other way, has filed the present suit for recovery of the said outstanding loan amount of Rupees 1,64,225-30, which is a suit claim. Therefore, the Plaintiff Bank has cause of action for filing the suit as against the Defendants for recovery of the suit claim and as such, it is maintainable.
16. The date of loan is on 19.12.2011. The Plaintiff Bank has filed this suit as against the Defendant on 19.08.2016. On perusal of the said dates, it prima-facie appears that, the suit filed by the Plaintiff Bank as against the Defendant is not well within time and it is barred by law of limitation. But, based on the same, it cannot be said that, the suit filed by the Plaintiff Bank as against the Defendant is not maintainable, as it is not well within time, as, on perusal of the entries made in Ex.P.6 Statement of Account, it appears that, last payment made by the Defendant to the Plaintiff Bank in respect of the said loan is on 19.12.2011 and within 3 years from the said date, the Plaintiff Bank has filed the present suit. Hence, the suit filed by the Plaintiff Bank as against the Defendant is well within the time and as such, it is maintainable.
17. From the above said material evidence, both oral and documentary, it is clearly proved that, as on the date of filing of the present suit, a sum of Rupees 1,64,225-30 is due from the Defendant to the Plaintiff Bank.
SCCH-7 11 S.C.No.1491/201618. To deny or to discard the same, nothing is available on record on behalf of the Defendant, as, though the suit summons was duly served on the Defendant through paper publication, he was remained absent and hence, he is placed as exparte. The non- appearance of the Defendant in the present suit clearly implies that, the Defendant has indirectly admitted the entire case made out by the Plaintiff Bank as against him as well as the evidence adduced by the Plaintiff Bank to consider it specific case, in the present suit. Hence, the Defendant is liable to pay a suit claim of Rupees 1,64,225-30 to the Plaintiff Bank.
19. The Plaintiff Bank has claimed interest at the rate of 12.85% p.a., compounded monthly on the suit claim of Rupees 1,64,225-30 from the date of the suit till its realization with costs of this suit and typing charges from the Defendant.
20. Based on the contents of Ex.P.1 to Ex.P.3, this Court has already observed and come to the conclusion that, the Defendant has agreed to repay the loan amount of Rupees 1,25,000/- with interest at the rate of 14% p.a., subject to variation in the rate of interest from time to time as per the direction of the Reserve Bank of India or as per the Prime Lending Rate fixed by the Plaintiff Bank. While discussing above, based on the entries made in Ex.P.6 Statement of Account, this Court has further clearly observed and come to the conclusion that, the Defendant is very irregular in making repayment of the loan installments to the Plaintiff bank and as such, as on 18.08.2016, SCCH-7 12 S.C.No.1491/2016 a sum of Rupees 1,64,225-30 is due from the Defendant to the Plaintiff Bank including up to date interest. Therefore, the said rate of interest at the rate of 12.85% p.a., compounded monthly on the suit claim of Rupees 1,64,225-30 by the Plaintiff Bank from the Defendant from the date of the suit till its realization, is not an exorbitant, unreasonable and improper. Further, the Defendant has dragged the Plaintiff Bank to file the present suit for recovery of the suit claim of Rupees 1,64,225-30, which is outstanding by him to the Plaintiff Bank as on 18.08.2016. Hence, there are merits in the claim of interest at the rate of 12.85% p.a., compounded monthly on the suit claim of Rupees 1,64,225-30 from the date of the suit till its realization. Hence, the Plaintiff Bank is entitled for current and future interest at the rate of 12.85% p.a., compounded monthly on the suit claim of Rupees 1,64,225-30 from the Defendant from the date of the suit till its realization.
21. The Plaintiff Bank has also claimed the costs of this suit and typing charges. Since, the Defendant has dragged the Plaintiff Bank to file the present suit for recovery of the suit claim inspite of issuance of Legal Notice, the Defendant is liable to pay the costs of the present suit to the Plaintiff Bank. Since, the Plaintiff Bank has not mentioned the charges of typing, the Plaintiff Bank is not entitled for any amount towards typing charges.
SCCH-7 13 S.C.No.1491/201622. Under the above said facts and circumstances as well as the reasons given, this Court has come to the conclusion that, the Plaintiff Bank by adducing acceptable material evidence, both oral and documentary, has positively established that, as on the date of filing of the present suit, a sum of Rupees 1,64,225-30 is due from the Defendant. Hence, the Plaintiff Bank is entitled for the suit claim of Rupees 1,64,225-30 along with current and future interest at the rate of 12.85% p.a., compounded monthly from the date of the suit till its realization with costs from the Defendant. Hence, the Defendant is liable to pay the suit claim of Rupees 1,64,225-30 with current and future interest at the rate of 12.85% p.a., compounded monthly from the date of the suit till its realization with costs to the Plaintiff Bank. Therefore, the suit filed by the Plaintiff Bank as against the Defendant is liable to be partly decreed with costs. Accordingly, I answered Point No.1 Partly in the Affirmative.
23. POINT NO.2 :- For the aforesaid reasons, I proceed to pass the following;
ORDER The suit filed by the Plaintiff Bank is hereby partly decreed with costs.
The Defendant is hereby directed to pay a sum of Rupees 1,64,225-30 with current and future interest at the SCCH-7 14 S.C.No.1491/2016 rate of 12.85% p.a., compounded monthly rests from the date of the suit till its realization, to the Plaintiff Bank, within two months from the date of this Order.
If the Defendant fails to pay, by then, the Plaintiff Bank is at liberty to recover the same in accordance with law.
Draw Decree accordingly.
(Dictated to the Stenographer directly on computer and typed by him, corrected and then, pronounced by me in the open Court on this, the 1st day of December, 2016.) (INDIRA MAILSWAMY CHETTIYAR) IX Addl. Small Causes Judge & XXXIVACMM, Court of Small Causes, Member, MACT-7, Bangalore.
ANNEXURE
1. WITNESSES EXAMINED BY THE PLAINTIFF :-
P.W.1 : Sri. Dushyant Singh
2. DOCUMENTS MARKED BY THE PLAINTIFF :-
Ex.P.1 : Loan Application dated 16.12.2011
Ex.P.2 : Composite Hypothecation Agreement
SCCH-7 15 S.C.No.1491/2016
dated 19.12.2011
Ex.P.3 : Acknowledgment Receipt dated 19.12.2011 Ex.P.4 : Office copy of Legal Notice dated 13.07.2016 along with 2 Postal Receipts Ex.P.5 : Returned Unserved Postal Cover Ex.P.6 : Statement of Account
3. WITNESSES EXAMINED BY THE DEFENDANT :-
-NIL-
4. DOCUMENTS MARKED BY THE DEFENDANT :-
-NIL-
(INDIRA MAILSWAMY CHETTIYAR) IX Addl. Small Causes Judge & XXXIV ACMM, Court of Small Causes, Member, MACT-7, Bangalore.