Bangalore District Court
Bank For The Purpose Of Business Loan. ... vs For His Departmental Store Business ... on 18 January, 2023
12
COM.O.S.1471/2022
IN THE COURT OF LXXXII ADDL.CITY CIVIL & SESSIONS
JUDGE, AT BENGALURU (CCH.83)
THIS THE 18th DAY OF JANUARY 2023
PRESENT:
SMT. SUMANGALA S BASAVANNOUR.,B.COM,L.L.M.,
LXXXII ADDL.CITY CIVIL & SESSIONS JUDGE,
BENGALURU.
Com.O.S.No.1471/2022
BETWEEN:
Canara Bank, (Erstwhile
Syndicate Bank),
Vimanapura Branch,
Bengalore - 560 017,
represented by its Chief
Manager, Sri. Mukul
Bhatnagar, S/o Sri. D.S.
Bharnagar, Aged about
56 years.
: PLAINTIFF
(Represented by Mr.
Rohit R Achar -
Advocate)
AND
1. M/s Easy Retail,
represented by its
12
COM.O.S.1471/2022
Proprietor, Mr. Ashwin
Thomas, S/o Mr. Shyson
Thomas, Aged about 32
years, No. 367/1, Ashwin
Manor, old Airport Road,
Bangalore - 560 017.
2. Mr. M.V. Vinod
Kumar, S/o K.V. Balan,
aged about 36 years,
No. 581/A, 3rd Main, K.R.
Garden, Murugeshpalya,
HAL PO, Bangalore - 560
017.
: DEFENDANT
(Defendant No 1 is
placed exparte as per
order dated0 3.01.2023
and Defendant No.2 is
placed exparte as per
order dated
09.11.2022)
Date of Institution of the
01.10.2022
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 06.01.2023
recording of evidence
Date on which judgment 18.01.2023
was pronounced
12
COM.O.S.1471/2022
Total Duration Year/s Month/s Day/s
01 03 17
(SUMANGALA S BASAVANNOUR),
LXXXII Addl.City Civil & Sessions Judge,
Bengaluru.
JUDGMENT
This suit is filed by the Plaintiff for recovery of Rs.12,64,000/- along with court costs, current and future interest on the suit at 12.00% p. a. compounded monthly from the date of suit till the date of realization.
2. The Brief facts of the Plaint are as follows:-
The Defendant a proprietorship firm represented by its proprietor on the guarantee of 2nd Defendant approached the Plaintiff Bank for the purpose of Business Loan. The Plaintiff accordingly on 25.08.2016 granted an overdraft facility of Rs.10,00,000/- to the 1st Defendant on the guarantee of 2nd Defendant for his departmental store business needs. for his xerox shop business needs. The Defendant to ensure prompt repayment of the loan amount availed by him executed the following documents in favour of the Plaintiff Bank.12
COM.O.S.1471/2022
(i) Loan Application dated 19.07.2016.
(ii) Sanction Letter dated 18.08.2016.
(iii) Composite Hypothecation Agreement dated 25.08.2016.
(iv) Guarantee Agreement dated 25.08.2016.
(v) Guarantee Agreement dated 25.08.2016.
The Defendant as per the sanction terms and the documents executed agreed to repay the Loan amount along with interest at 10.80% p.a. compounded monthly. The Defendants have also agreed to pay interest at varied rate as per the changes in the rate of interest. The Defendants have also agreed to pay overdue interest of 2% in case of default in payment of loan amount as agreed. The over draft facility is repayable within 2 years from the date of availing the loan and interest to be paid as and when dues. The Defendant as Primary Security hypothecated the assets purchased out of the loan proceeds in favour of the Plaintiff Bank. The Defendant did not operate the over draft Facility Accounts satisfactorily and committed defaults in repayment of the installments. The Defendants continued the default in operation the account in spite of repeated demands, personal approaches made by the Plaintiff officials. The monthly installments were not paid as and when due. The Defendants executed acknowledgement of 12 COM.O.S.1471/2022 Debt dated 05.02.2018, 18.06.2019 and 16.06.2022 in favour of the Plaintiff Bank. The Plaintiff finally got issued a Legal notice dated 11.12.2021 and recalled the entire amount due. The Defendant has neither replied to the notice nor paid the amount due under the Notice. The Defendants are due as on date of filing the above suit a total sum of Rs.12,64,000/- and the suit is filed for the recovery of the said amount from the Defendant.
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, The Defendant No.1 is placed exparte on 03.01.2023 and Defendant No.2 is placed ex- parte on 09.11.2022.
4. The Plaintiff has examined PW-1 and got marked Ex.P.1 to Ex.P.12. 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 ?12
COM.O.S.1471/2022
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 Akhilesh Kumar. as PW.1. PW.1 in her evidence reiterated averments of the Plaint, and got marked Ex.P.1 to Ex.P.12.
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 12 COM.O.S.1471/2022 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.1 to Ex.P.5 discloses that the 2nd Defendant approached the Plaintiff Bank for the purpose of Business Loan. The Plaintiff accordingly on 25.08.2016 granted an overdraft facility of Rs.10,00,000/- to the 1st Defendant on the guarantee of 2nd Defendant for his departmental store business needs as per Ex.P.2.
10. The Defendant to ensure prompt repayment of the loan amount availed by him executed the several documents in favour of the Plaintiff Bank i.e., Composite hypothecation agreement dated 25.08.2016 at Ex.P.3, Guarantee agreement dated 25.08.2016 at Ex.P.4 and Guarantee agreement dated 25.08.2016 at Ex.P.5.
11. The Defendant as per the sanction terms and the documents executed agreed to repay the Loan amount along with interest at 10.80% p.a. compounded monthly. The over draft facility is repayable within 2 years from the date of availing the loan and interest to be paid as and when dues. The Defendant as Primary Security hypothecated the assets purchased out of the loan proceeds in favour of the Plaintiff 12 COM.O.S.1471/2022 Bank.
12. The Defendant did not operate the Credit Facility Accounts satisfactorily and committed defaults in repayment of the installments. The Defendant continued the default in operation the account in spite of repeated demands, personal approaches made by the Plaintiff officials. The monthly installments were not paid as and when due.
13. The Defendants executed acknowledgment of Debt dated 05.02.2018, 18.06.2019 and 16.06.2022 at Ex.P.6 to Ex.P.8 in favour of the Plaintiff Bank. The Plaintiff finally got issued a Legal notice dated 11.12.2021 at Ex.P.9 and recalled the entire amount due. The Defendant has neither replied to the notice nor paid the amount due under the Notice.
14. From Ex.P.12 the ledger extract of over draft account speaks to the effect that total amount payable Rs. 12,47,690/- towards principle amount. The plaintiff Bank calculated the interest form 01.09.2022 till the date of filing the suit 16,309.08 The plaintiff claimed the interest for current and future interest at the rate 12.00% per annum compounded monthly. However by considering the interest prevailing, it is proper to award interest @ 10% per annum from the date of suit.
15. The above mentioned transactions commenced from 12 COM.O.S.1471/2022 25.08.2016 and the Acknowledgment of Debt dated 05.02.2018, 18.06.2019 and 16.06.2022 at Ex.P.6 to Ex.P.8 and the suit filed on 01.10.2022 is within the limitation period.
16. 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.12 are remained unchallenged. Therefore, the Plaintiff is entitle for recovery of the suit claim amount of Rs. 12,64,000/- with interest @ 10% per annum from the date of suit till realization of the entire amount. Hence, I answer this Point in " Partly Affirmative".
17. 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 a sum of Rs. 12,64,000/- for over draft account No.06951400000296 along with interest 10% per annum from the date of suit till the realization.
12COM.O.S.1471/2022 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 18th day of January, 2023).
(SUMANGALA S BASAVANNOUR), LXXXII Addl.City Civil & Sessions Judge, Bengaluru.
ANNEXURE LIST OF WITNESSES EXAMINED ON BEHALF OF THE PLAINTIFF PW-1 Akhilesh Kumar LIST OF DOCUMENTS EXHIBITED ON BEHALF OF THE PLAINTIFF Ex.P.1 Loan application Ex.P.2 Sanction memorandum dt 18.08.2016 Ex.P.3 Composite hypothecation agreement dt 25.08.2016 Ex.P.4 Guarantee agreement dt 25.08.2016 12 COM.O.S.1471/2022 Ex.P.5 Guarantee agreement dt 25.08.2016 Ex.P.6 Acknowledgment of debt dt 05.02.2019 Ex.P.7 Acknowledgment of debt dt 18.06.2019 Ex.P.8 Acknowledgment of debt dt 16.06.2022 Ex.P.9 Office copy of the legal notice dt 11.12.2021 along with postal receipts Ex.P.10 Unserved RPAD and notice Ex.P.11 Postal Acknowledgment Ex.P.12 Statement of account along 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.