Bangalore District Court
Bank Of Baroda vs M/S Sahara Marketing on 5 September, 2024
1 COM.O.S.336/2024
KABC170006292024
IN THE COURT OF LXXXII ADDL.CITY CIVIL & SESSIONS
JUDGE, AT BENGALURU (CCH.83)
THIS THE 5TH DAY OF SEPTEMBER 2024
PRESENT:
SMT. SUMANGALA S BASAVANNOUR.,B.COM,L.L.M.,
LXXXII ADDL.CITY CIVIL & SESSIONS JUDGE,
BENGALURU.
Com.O.S.No.336/2024
BETWEEN:
Bank of Borada,
Mahalaxmipuram
Branch, Bangalore,
represented by its
Branch Head/Manager,
Mr. Kunal Kashyap.
: PLAINTIFF
(Represented by Sri. R.S.
Rajesh - Advocate)
AND
2 COM.O.S.336/2024
1. M/s. Sahara
Marketing, represented
by Pro. Mr. Pravez
Ahmed, No. 5/1, RELHS,
01st Floor REIHS, JC
Nagar, Kurubarahalli,
Bangalore - 560 086.
2. Mr. Pravex Ahmed,
No. 5/1, RELHS, 1st
Floor, J.C. Nagar,
Kurubarahalli, Bangalore
- 560 086.
: DEFENDANTS
(Defendant is placed
exparte as per order
dated 07.08.2024)
Date of Institution of the
29.02.2024
suit
Nature of the suit (suit on
pronote, suit for declaration
Suit for recovery of money
& Possession, Suit for
injunction etc.)
Date of commencement of 28.08.2024
recording of evidence
Date on which judgment 05.09.2024
was pronounced
Total Duration Year/s Month/s Day/s
00 06 07
(SUMANGALA S BASAVANNOUR),
LXXXII Addl.City Civil & Sessions Judge,
Bengaluru.
3 COM.O.S.336/2024
JUDGMENT
This suit is filed by the Plaintiff pleased to pass a Judgment and Decree against all the Defendants jointly and severally to pay a sum of Rs.15,09,061.70 together with interest at 10.05% with monthly rests from the date of filing the suit till realization.
2. The Brief facts of the Plaint are as follows:-
The Defendant approached the plaintiff to sanction certain loan/credit facility towards the working capital requirements of its business. Accordingly, at the requests of the defendant the plaintiff sanctioned sum of Rs. 6,00,000/- as cash credit/loan facility and the defendant availed the same in the loan account number 67000500000008 opened in the name of the 1st Defendant at plaintiff bank. As security for due repayment of the loan together with interest payable, the defendants have executed demand promissory note agreeing to pay the said sum of Rs.6,00,000/- together with the interest at 9.30% with monthly rests the defendant also hypothecated stocks as a continuing security for the renew repayment of the loan the copies of the hypothecation agreement, demand promissory note, declaration, undertaking and letter of continuity all dated 06.11.2019 along with the attestation memo is produced here with the same was enhanced to Rs. 7,00,000/- as per the 4 COM.O.S.336/2024 terms and conditions of sanction letter. On account of Covid 19 pandemic, at the request of the defendants and in order to assist the defendants to carry on its business, the plaintiff sanctioned BGECL facilities of Rs. 1,19,000/- and the same was availed by the defendants on or after 03.07.2020 in the loan A/ c. No.67000600000454 opened in the name of the first defendant. The original along with the copies of the loan documents executed by the defendants viz., Undertaking letter, Demand promissory note, Hypothecation agreement dated
03.07.2020.
The Plaintiff further contended that at the request of the defendants plaintiff sanctioned the Car loan of Rs.7,00,000/- repayable together with interest of Rs.8.85% floating with monthly rests. The defendants borrowed/availed the said sum agreeing to pay with interest in 84 equated monthly instalments (EMI) of Rs.11,210/- each. As security for the said loan, the defendants has executed the demand promissory note 24.10.2019, letter of instalments, declaration, undertaking and hypothecated the vehicle as per the hypothecation agreement dated 24.10.2019. the defendants failed to honour their commitments and committed breach of terms of sanction, the defendant failed to periodically stock statement and pay the loan instalments. On account of failure to repay the dues all the loan accounts are declared as NPA on 16.11.2022 in terms of 5 COM.O.S.336/2024 the guidelines issued by the RBI. The defendants have admitted and acknowledged the their liabilities to pay sum of Rs.3,27,934.02 as on 5.11.2019 in respect of CC account. Again the defendants admitted and acknowledged their liabilities to pay sum of Rs. Rs.5,33,326.54 as on 23.12.2020 in respect of the CC accounts No.67000500000008. The defendants were called up on to pay the outstanding dues vide the legal notice dated 12.05.2022. However, they failed to comply with the same. Thereafter the plaintiff took steps and made on application in Form-1 raising the dispute before the Mediation centre as per section (1) C of the Commercial Courts Act, 2015 the copy of the same is produced herewith the defendant failed to appeared as per the norms Starter Report Form 3 issued by the DLSA in PIM.2020/2023
3. Inspite of paper publication, the Defendant has not appeared before this court, after waiting for 30 days, i.e., the time limit for filing written statement, he was placed ex-parte on 07.08.2024.
4. The Plaintiff has examined PW-1 and got marked Ex.P.1 to Ex.P.33. I have heard the arguments of the Advocate for the Plaintiff.
5. Based on the above pleadings of the Plaintiff, the following 6 COM.O.S.336/2024 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 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 as PW.1. PW.1 in his evidence reiterated averments of the Plaint, and got marked Ex.P.1 to Ex.P.33.
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 7 COM.O.S.336/2024 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 discloses that the Defendant has approached the plaintiff to sanction certain loan/credit facility towards the working capital requirements of its business. Accordingly, at the requests of the defendant the plaintiff sanctioned sum of Rs. 6,00,000/- as cash credit/loan facility and the defendant availed the same in the loan account number 67000500000008 opened in the name of the 1st Defendant at plaintiff bank. As security for due repayment of the loan together with interest payable.
10. The defendants have executed demand promissory note at agreeing to pay the said sum of Rs.6,00,000/- together with the interest at 9.30% with monthly rests the defendant also hypothecated stocks as a continuing security for the renew repayment of the loan the copies of the hypothecation agreement, demand promissory note at Ex.P.4, declaration undertaking and letter of continuity all dated 06.11.2019 at 8 COM.O.S.336/2024 Ex.P.5 and Ex.P.6 along with the attestation memo is produced here with the same was enhanced to Rs. 7,00,000/- as per the terms and conditions of sanction letter.
11. On account of Covid 19 pandemic, at the request of the defendants and in order to assist the defendants to carry on its business, the plaintiff sanctioned BGECL facilities of Rs. 1,19,000/- and the same was availed by the defendants on or after 03.07.2020 in the loan A/c. No.67000600000454 opened in the name of the first defendant. The loan documents executed by the defendants viz., Undertaking letter at Ex.P.13, Demand promissory note at Ex.P.17, Hypothecation agreement dated 03.07.2020 at Ex.P.16.
12. At the request of the defendants, plaintiff sanctioned the Car loan of Rs.7,00,000/- repayable together with interest of Rs.8.85% floating with monthly rests. The defendants borrowed/availed the said sum agreeing to pay with interest in 84 equated monthly instalments (EMI) of Rs.11,210/- each. As security for the said loan, the defendants has executed the demand promissory note 24.10.2019 at Ex.P.24, letter of instalments Ex.P.20, declaration Ex.P.25, undertaking and hypothecated the vehicle as per the hypothecation agreement dated 24.10.2019. the defendants failed to honour their commitments and committed breach of terms of sanction, the 9 COM.O.S.336/2024 defendant failed to periodically stock statement and pay the loan instalments. On account of failure to repay the dues all the loan accounts are declared as NPA on 16.11.2022 in terms of the guidelines issued by the RBI.
13. The defendants have admitted and acknowledged the their liabilities to pay sum of Rs.3,27,934.02 as on 5.11.2019 in respect of CC account. Again the defendants admitted and acknowledged their liabilities to pay sum of Rs. Rs.5,33,326.54 as on 23.12.2020 in respect of the CC accounts No.67000500000008. The defendants were called up on to pay the outstanding dues vide the legal notice dated 12.05.2022 at Ex. P.32.
14. From Ex.P.26 the Statement of account of Cash credit/Business loan, speaks to the effect that total amount payable towards principle amount of Rs. 84,605.86/-.
15. From Ex.P.27 the Statement of account of BGECLS facilities, speaks to the effect that total amount payable towards principle amount of Rs. 8,48,734.60/-.
16. From Ex.P.28 the Statement of account of car loan facilities, speaks to the effect that total amount payable 10 COM.O.S.336/2024 towards principle amount of Rs. 7,00,000/-.
17. Hence, the plaintiff proved that, defendants are jointly and severally liable to pay a sum of RS. 15,09,061.70/-. By considering the interest prevailing, it is proper to award the interest at 10.05% per annum from the date of filing the suit till realization.
18. The above mentioned transactions commenced from 06.11.2019, and the last payment was made by the Defendant on 27.01.2022 at Ex.P.26, 27.07.2022 at Ex.P.27 and 27.09.2022 at Ex.P.28 suit filed on 29.02.2024 is within the limitation period.
19. The plaintiff bank has prayed the court to pass an order for sale of hypothecated vehicle bearing No. KA - 02 - 9748, hypothecated by the defendant in favour of plaintiff bank, the court cannot grant the relief of sale of hypothecated vehicle in this case. The plaintiff bank is at liberty to seek sale of hypothecated vehicle in a properly constituted execution proceedings
20. In spite of Paper publication, the Defendant had not appeared and denied the claim of the Plaintiff. Therefore, the evidence of PW.1 and Ex.P.1 to Ex.P33 are remained 11 COM.O.S.336/2024 unchallenged. Hence, the Plaintiff is entitle for recovery of the suit claim amount of Rs. 15.09.061.70/- together with interest @ 10.05% per annum from the date of suit till realization of the entire amount. Hence, I answer this Point in " Affirmative".
21. Point No.2 : -Therefore, I proceed to pass the following Order.
ORDER The Suit of the Plaintiff is decreed with cost.
The Defendants are hereby jointly and
severally liable to pay a sum of
Rs.15,09,061.70/- to the Plaintiff, with
interest at the rate of 10.05% 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 05th day of September, 2024).
(SUMANGALA S BASAVANNOR), LXXXII Addl.City Civil & Sessions Judge, Bengaluru.
12 COM.O.S.336/2024ANNEXURE LIST OF WITNESSES EXAMINED ON BEHALF OF THE PLAINTIFF PW-1 Kunal Kashap LIST OF DOCUMENTS EXHIBITED ON BEHALF OF THE PLAINTIFF Ex.P.1 Loan application Ex.P.2 Sanction letter dtd.06.11.2019 Ex.P.3 Letter of proprietorship dtd.03.07.2020 Ex.P.4 D.P.Note dtd.06.11.2019 Ex.P.5 Letter of continuing security (pg no.16 & 17) Ex.P.6 Declaration cum undertaking cum authority dtd.06.11.2019 (pg no.18 to 23) Ex.P.7 Supplemental composite instrument hypothication deed dtd.06.11.2019 (pg no.24 to 26) Ex.P.8 Car Loan application Ex.P.9 Draft letter of sanction dtd.24.10.2019 Ex.P.10 D.P.note dtd.24.10.2019 Ex.P.11 Attestation memo Ex.P.12 Hypothication deed dtd.24.10.2019 (pg no.65 to 69) Ex.P.13 Original offer letter for pre approved loan facility dtd.03.07.2020 Ex.P.14 Original undertaking letter dtd.03.07.2020 Ex.P.15 Original attestation memo dtd.03.07.2020 Ex.P.16 Original composite hypothication agreement (pg no.31 to
41) Ex.P.17 D.P.note dtd.03.07.2020 Ex.P.18 Declaration cum undertaking cum authority dtd.03.07.2020 (pg no.43 to 47) Ex.P.19 Sanction letter dtd.23.12.2020 (pg no.48 to 50) Ex.P.20 Letter of installment dtd.24.10.2019 Ex.P.21 Original letter of continuing security LDOC dtd.23.12.2020 (pg no.52 & 53) 13 COM.O.S.336/2024 Ex.P.22 Letter of authority dtd.24.10.2019 Ex.P.23 Original attestation memo dtd.23.12.2020 Ex.P.24 D.P.note dtd.23.12.2020 Ex.P.25 Declaration cum undertaking cum authority dtd.23.12.2020 (pg no.57 to 62) Ex.P.26 Statement of account pertaining to business loan (pg no.72 to 86) Ex.P.27 Statement of account pertaining to BGECL loan (pg no.87 to 90) Ex.P.28 Statement of account pertaining to car loan (pg no.91 to 98) Ex.P.29 Certificate Ex.P.30 Letter of acknowledgment of debt dtd.06.11.2019 (pg no.99 to 102) Ex.P.31 Letter of acknowledgment of debt dtd.23.12.2020 (pg no.103 to 106) Ex.P.32 O/C of Legal notice dtd.05.12.2022 Ex.P.33 PIM report dtd.10.01.2024 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.