Bangalore District Court
Bank In Respect Of The Said Loan. The Oral ... vs But on 1 March, 2016
IN THE COURT OF THE SMALL CAUSES, AT BANGALORE
(SCCH-7)
Dated this, the 1st day of March, 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.1324/2015
Syndicate Bank, : ..... PLAINTIFF
A body corporate incorporated
under the Banking Companies
(Acquisition and Transfer of
Undertaking) Act, 1970, having its
Head Office at Manipal, Dakshina
Kannada, among others places
and a Branch called as:
Doddakalasandra Branch,
Bangalore.
Represented by its Branch
Manager,
Sri. Vinod.V.Shanbhag,
Aged about 55 years.
(By Smt. M.R. Rajani, Adv.,)
V/s
Sri. Anjanappa, ..... DEFENDANT
S/o. Cheluvaiah,
Aged about 52 years,
Residing at No.E-97/B-H,
2 S.C.No.1324/2015
SCCH-7
Konanakunte,
Kanakapura Road,
Bengaluru - 560 062.
(Exparte)
1. Date of Institution : 18.11.2015
2. Nature of Suit : Recovery of Money
3. Date of Evidence : 05.02.2016
4. Date of Judgment : 01.03.2016
5. Total duration : YEAR/S MONTH/S DAYS
00 03 17
(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 65,115/- with interest at the rate of 13.70% p.a. compounded monthly, from the date of the suit till its realization in full, with costs.
2. The brief averments of the Plaintiff Bank's case are as follows;
a) It is a body Corporate incorporated under the provisions of the Banking Companies (Acquisition and Transfer of Undertaking) Act, 1970, having its Head Office at Manipal, 3 S.C.No.1324/2015 SCCH-7 Dakshina Kannada and one of its Branch at the address mentioned in the cause title of the plaint and in this case, it is represented by its Branch Manager Sri.Vinod.V.Shanbhag, who is duly authorized and competent to file the present suit as against the Defendant.
b) During the course of the transactions with it, the Defendant approached it, for a vehicle loan for purchasing Auto Rickshaw with a Loan Application dated 20.06.2012. After considering the request of the Defendant, it sanctioned a loan of Rupees 1,20,000/- in Loan Account No.04927910000089 on 26.06.2012.
c) For having availed the loan facility of Rupees 1,20,000/, the Defendant has executed Consideration Receipt dated 22.09.2012 in its favour.
d) The Defendant agreed to repay the said loan facility of Rupees 1,20,000/- for value received in equal monthly installments of Rupees 2,723/- together with interest thereon at the rate of 12.50% p.a. over and above the Syndicate Bank's Prime Lending Rate (PLR)/Prime Term Lending Rate (PTLR) rising or falling there with from time to time and notified on its notice board or published in news-paper or made known in the statement to the borrower at calendar monthly/quarterly basis in each year and further agrees that, such interest will be paid on the last day of the calendar month/quarter, except where repayments are stipulated in monthly equated installments or at such other rates 4 S.C.No.1324/2015 SCCH-7 as may be decided by it or as per the Directives of the Reserve Bank of India issued from time to time for value received. In this regard, the Defendant has executed Composite Hypothecation Agreement dated 22.09.2012 in its favour.
e) After availing and utilizing the loan, the Defendant failed to honour the terms and conditions of the loan by failing to repay the same in time as agreed and undertook by him and has thus, become a defaulter.
f) Inspite of repeated requests, remainders, demands and personal approaches and even after grant of sufficient time to clear the balance outstanding, the Defendant has not cleared the entire balance outstanding to it.
g) It has got issued Legal Notice dated 30.09.2015 to the Defendant through its Counsel. Even after issuance of the Legal Notice, the Defendant did not reply nor made any payment towards the balance outstanding to it.
h) Having no other option, it has approached the Hon'ble Court for seeking recovery of the balance outstanding.
i) The present rate of interest pertaining to the loan account of the Defendant is 11.45% p.a. with monthly rests and another additional 2% penal interest as per the Agreement dated 22.09.2012. Further, the Defendant has expressly agreed to pay 5 S.C.No.1324/2015 SCCH-7 the interest in case of any variation, change in the same and it is entitled to claim the present rate of interest in the present suit.
j) As on the date of filing of this suit, the Defendant is due and liable to it a sum of Rupees 65,115/- along with interest thereon at the rate of 13.70% p.a., (inclusive 2% penal interest) compounded monthly from the date of suit till realisation in full.
k) It operates on a Flexicube Core Banking Service Software (CBS Software) developed by I flex Technology. The Current Account maintained by it has a separate user profile and User ID (User Identification). Only Authorised User can Log in into the system and the datas cannot be manipulated. The said Software is Foolproof and Tamperproof. The Software does not allow any unlawful alternations or unlawful debits. The statement of Account maintained by it is in accordance with the provisions of Section 2-A of the Banker's Book of Evidence Act, 1891.
l) There is no pendency of any legal proceeding and litigations either past or present, concerning any part of the subject-matter of this suit in any Court within its knowledge.
m) The suit filed is in time and is within the period of Limitation as per the provisions of the Indian Limitation Act, 1963. Hence, pleading cause of action, the Plaintiff Bank has filed this 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 28.01.2016.
6 S.C.No.1324/2015SCCH-7
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.5.
5. Heard the arguments.
6. Now, the Points that arise for my consideration are as follows;
POINTS
1. Whether the Plaintiff Bank is entitled for a sum of Rupees 65,115/- from the Defendant with current and future interest at the rate of 13.70% p.a. compounded monthly from the date of the suit till its realization with costs as prayed for?
2. What Order?
7. My answers to the above Points are as follows;
Point No.1 : In the Affirmative, Point No.2 : As per 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 65,115/- with 7 S.C.No.1324/2015 SCCH-7 interest at the rate of 13.70% p.a. compounded monthly, from the date of the suit till its realization in full, with costs.
9. The P.W.1, who is the Branch Manager of the Plaintiff Bank, has stated in his examination-in-chief that, during the course of the transactions with their Bank, the Defendant, approached their Bank for a vehicle loan for purchasing Auto Rickshaw with a Loan Application dated 22.09.2012 and after considering the request of the Defendant, their Bank sanctioned a loan of Rupees 1,20,000/- in Loan Account No.04927910000089 on 22.09.2012. He has further stated that, for having availed the loan facility of Rupees 1,20,000/-, the Defendant has executed Consideration Receipt dated 22.09.2012 in favour of their Bank. He has further stated that, the Defendant has agreed to repay the said loan facility of Rupees 1,20,000/- for value received in equal monthly installments of Rupees 2,733/- together with interest thereon at the rate of 12.50% p.a., over and above the Syndicate Bank's Prima Lending Rate (PLR)/Prime Term Lending Rate (PTLR) rising or falling therewith from time to time and notified on its Notice Board or published in News-paper or made known in the statement to the borrower at calendar monthly/quarterly basis in each year and further agrees that, such interest will be paid on the last day of the calendar month/quarter except where repayments are stipulated in monthly equated installments or at such other rates as may be decided by their Bank or as per the directives of the Reserve Bank of India issued from time to time for value received and in this regard, the Defendant has executed 8 S.C.No.1324/2015 SCCH-7 Composite Hypothecation Agreement dated 22.09.2012 in favour of their Bank.
10. To corroborate the oral version of P.W.1 as well as its case, the Plaintiff Bank has produced Ex.P.1 Loan Application dated 20.06.2012, Ex.P.2 Consideration Receipt dated 22.09.2012 and Ex.P.3 Composite Hypothecation Agreement dated 22.09.2012.
11. On perusal of the contents of Ex.P.1 to Ex.P.3, it clearly goes to show that, on 22.09.2012, the Defendant has borrowed a loan of Rupees 1,20,000/- from the Plaintiff Bank for the purpose of purchase of Auto Rickshaw and has agreeing to repay the said loan in equal monthly installments of Rupees 2,723/- with interest at the rate of 12.50% p.a., and variable interest from time to time and by agreeing the terms and conditions of the said loan documents, the Defendant has executed the necessary and required documents in favour of the Plaintiff Bank in respect of the said loan. The oral version of P.W.1 is clearly corroborated with the contents of Ex.P.1 to Ex.P.3.
12. The P.W.1 has stated that, after availing and utilizing the loan, the Defendant failed to honour the terms and conditions of the loan and by failing to repay the same in time, as agreed and undertook by him and has thus, become a defaulter. He has further stated that, inspite of repeated requests, remainders, demands and personal approaches and even after grant of sufficient time to clear the balance outstanding, the Defendant 9 S.C.No.1324/2015 SCCH-7 has not cleared the entire balance outstanding to their Bank. He has further stated that, their Bank has got issued a legal notice dated 30.09.2015 to the Defendant through its Counsel and even after the issuance of the Legal Notice, the Defendant did not reply nor made any payment towards the balance outstanding to their Bank. He has further stated that, as on the date of filing this suit, the Defendant is due and liable to their Bank, as sum of Rupees 65,115/-.
13. To consider the oral version of P.W.1, the Plaintiff Bank has produced Ex.P.4 Office copy of Legal Notice dated 30.09.2015 and Ex.P.5 Statement of Account along with Certificate.
14. On perusal of the entries made in Ex.P.5 Statement of 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 hence, on 31.10.2015 a sum of Rupees 65,115-16 is due from him to the Plaintiff Bank. From this, it is made crystal clear that, as on date of filing of the present suit, a sum of Rupees 65,115/- is due from the Defendant to the Plaintiff Bank, which is the suit claim.
15. The contents of Ex.P.4 Legal Notice further clarify the fact that, before filing the present suit, the Plaintiff Bank has made prompt efforts for recovery of the loan due amount from the Defendant, but, inspite of issuance of the Legal Notice, the Defendant did not care to repay the loan amount as agreed to the Plaintiff Bank and as such, as no other alternative, the Plaintiff 10 S.C.No.1324/2015 SCCH-7 Bank has filed the present suit as against the Defendant. Hence, the Plaintiff Bank has cause of action for filing the present suit. From this, it is made crystal clear that, as on the date of filing of the present suit, a sum of Rupees 65,115/- is due from the Defendant to the Plaintiff Bank.
16. The date of loan is on 22.09.2012. The Plaintiff Bank has filed the present suit on 18.11.2015. On perusal of the said dates it appears that, the suit filed by the Plaintiff Bank as against the Defendant for recovery of the outstanding loan due amount is after lapse of 3 years from the date of loan. But, based on the same, it cannot be said that, the suit filed the Plaintiff Bank as against the Defendant is clearly barred by law of limitation and as such, the suit filed by the Plaintiff Bank as against the Defendant not maintainable, as, the entries made in Ex.P.5 Statement of Account clearly disclosed that, on 31.10.2015, the Defendant has deposited a sum of Rupees 2,500/- to the Plaintiff Bank in respect of his loan Account, which is the last payment made by the Defendant to the Plaintiff Bank. Therefore, the suit filed the Plaintiff Bank as against the Defendant is well within time and as such, it is maintainable.
17. The Plaintiff Bank has claimed interest at the rate of 13.70% p.a., compounded monthly on the suit claim of Rupees 65,115/- from the Defendant from the date of the suit till its realization with costs.
11 S.C.No.1324/2015SCCH-7
18. The P.W.1 has stated that, the present rate of interest pertaining to the Loan Account of the Defendant is 11.45% p.a. with monthly rests and another additional 2% penal interest as per the Agreement dated 22.09.2012 and the Defendant has expressly agreed to pay the interest in case of any variation, change in the same and their Bank is entitled to claim the present rate of interest in the present suit.
19. Based on the contents of Ex.P.1 to Ex.P.3 and entries made in Ex.P.5, this Court has already observed and come to the conclusion that, the Defendant has agreed to pay interest at the rate of 12.50% p.a., over and above and varied interest from time to time and the Defendant is very irregular in making repayment of the said loan installments to the Plaintiff Bank. When the Defendant by executing necessary and required documents in favour of the Plaintiff Bank has agreed to repay the loan amount with interest and also varied interest from time to time and when the Defendant is very irregular in repayment of loan installments to the Plaintiff Bank, the current and future interest at the rate of 13.70% p.a., compounded monthly on the entire suit claim of Rupees 65,115/- from the date of filing of the present suit till its realization claimed by the Plaintiff Bank from the Defendant, is proper and correct. Further, the said rate of interest at the rate of 13.70% p.a., compounded monthly on the entire suit claim is not an exorbitant and unreasonable. Hence, the Plaintiff Bank is entitled for current and future interest at the rate of 13.70% compounded monthly on the suit claim of Rupees 65,115/- from the date of the suit till its realization from the Defendant. Since 12 S.C.No.1324/2015 SCCH-7 the Defendant has dragged the Plaintiff Bank to file the present suit for recovery of the suit claim of Rupees 65,115/- inspite of issuance of Legal Notice, the Defendant is liable to pay the costs of the present suit to the Plaintiff Bank.
20. 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 producing acceptable material evidence, both oral and documentary, positively established that, as on the date of the filing of the present suit, a sum of Rupees 65,115/- is due from the Defendant and also the Defendant is liable to pay the current and future interest at the rate of 13.70% p.a., compounded monthly on the said suit claim from the date of the suit till its realization with costs. 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 him through paper publication, he was remained absent and hence, he is placed as exparte. The non-appearance of the Defendant clearly implies that, the Defendant has indirectly admitted the entire case made out by the Plaintiff Bank as against him in the present suit. Therefore, the Defendant is liable to pay the same to the Plaintiff Bank and the Plaintiff Bank is entitled for entire suit claim along with current and future interest and costs as ordered. Hence, the suit filed the Plaintiff Bank as against the Defendant is liable to be decreed with costs. Accordingly, I answered Point No.1 in the Affirmative.
13 S.C.No.1324/2015SCCH-7
21. POINT NO.2 :- For the aforesaid reasons, I proceed to pass the following;
ORDER The suit filed by the Plaintiff Bank is hereby decreed with costs.
The Defendant is hereby directed to pay a sum of Rupees 65,115/- with current and future interest at the rate of 13.70% p.a., compounded monthly 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, transcribed and typed by him, corrected and then, pronounced by me in the open Court on this, the 1st day of March, 2016.) (INDIRA MAILSWAMY CHETTIYAR) IX Addl. Small Causes Judge & XXXIV ACMM, Court of Small Causes, Member, MACT-7, Bangalore.
14 S.C.No.1324/2015SCCH-7 ANNEXURE
1. WITNESSES EXAMINED BY THE PLAINTIFF :-
P.W.1 : Sri. Vinod. V. Shanbhag
2. DOCUMENTS MARKED BY THE PLAINTIFF :-
Ex.P.1 : Loan Application dated 20.06.2012 Ex.P.2 : Consideration Receipt dated 22.09.2012 Ex.P.3 : Composite Hypothecation Agreement dated 22.09.2015 Ex.P.4 : Office Copy of Legal Notice dated 30.09.2015 Ex.P.5 : Statement of Account along with Certificate
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.