Bangalore District Court
Canara Bank vs Kandaswamy A on 15 March, 2024
KABC020035702022
IN THE COURT OF SMALL CAUSES (SCCH23)
AT BENGALURU
DATED THIS THE 15th DAY OF MARCH 2024
PRESENT: SMT.CHETANA S.F.
B.A., LL.B,
IV ADDL. SCJ & ACMM
MEMBER MACT, BENGALURU.
S.C No.105/2022
PLAINTIFF : Canara Bank
a body corporate, constituted
under banking companies
(acquisition and transfer of
undertaking) Act 1970
having its head office at
112, JC road,
Bengaluru
and a local branch at
Canara bank Vijayanagara branch
NO.53, Magadi chord road
Bengaluru560 040
represented by its
Senior
Manager
and GPA holder
Judgment SC NO.105/2022
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Sri.Sandeep Yadav
S/o Roshan Lal
Aged about 34 years
(By Sri.M.B.Chandrashekar.,
Advocate)
V/s
DEFENDANT : 1. Sri.Kandaswamy A
S/o Mudaliar K. Avinashilingam
Aged major
No.1078/24, 8th main
5th cross, Vijaynagar
Bengaluru560 040.
(Exparte)
Date of institution of the suit : 07.02.2022
Nature of the suit : Recovery of Money
Date of the commencement of : 05012024
recording of the evidence
Date on which judgment was : 15032024
pronounced
Total Duration Years Months Days
02 01 08
(Chetana S.F.)
IV ADDL.SCJ & ACMM,
Bengaluru.
Judgment SC NO.105/2022
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:: J U D G M E N T ::
This suit is filed for recovery of a sum of Rs.41,868/ together with interest thereon at the rate of 8.30% + 2% penal interest p.a. compounded monthly from the date of suit till the date of realization.
2. The defendant approached plaintiff bank seeking to grant a term loan under the PMMY scheme for his business needs. Thereafter the plaintiff bank release of the said loan of Rs.1 lakh at an interest rate of 9.25% p.a. which would be changed from time to time as per RBI directives to the defendant. The defendant also agreed to pay the incidental charges, penal interest at 2% etc., to the plaintiff bank. The defendant had agreed to repay the loan amount along with accrued interest by way of EMI to the plaintiff bank and thereafter the defendant had also executed all relevant loan documents in favour of the plaintiff bank. The defendant executed necessary documents to the plaintiff bank. Thereafter the defendant did not adhere to the agreed terms of sanction of loan facilities and did not regularise the loan Judgment SC NO.105/2022 4 SCCH-6 account. The plaintiff bank sent demand letter to the defendant to repay the balance amount on several occasions. The defendant have failed and neglected the payments due to the plaintiff bank. Hence plaintiff prays to direct the defendant to pay a sum of Rs.41,868/ along with agreed rate of interest at 8.30% + 2% penal interest p.a. compounded monthly from the date of suit till realisation and to grant other relief.
3. Inspite of service of suit summons, the defendant failed to appear before this Court. Hence defendant placed exparte.
4. The Senior Manager of the plaintiff bank got examined himself as PW.1. Ex's.P1 to 11 were marked.
5. Heard. Perused the materials on record.
6. The points that arise for consideration are as follows :
1. Whether the plaintiff proves that the defendants are liable to pay the suit claim amount of Rs.41,868/ along with agreed rate of interest at 8.30% + 2% penal interest p.a. compounded monthly from the date of suit till realisation as claimed ?
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2. What order or decree ?
7. My findings on the above points are as follows :
Point No.1 : In the negative Point No.2 : As per final order for the following :
REASONS
8. Point No.1 : The Senior Manager of the plaintiff bank has filed his affidavit and reiterated the plaint averments. To substantiate his contention he has produced Ex's.P1 to 11. ExP1 authorisation letter, ExP2loan application, ExP3sanction memorandum, ExP4agreement cum deed of hypothication, ExP5enclosure, ExP6 certificate of loan papers obtained, ExP7hypothication letter, ExP8notice, ExP9postal receipt, ExP10postal acknowledgment, ExP11loan ledger account extract.
9. Inspite of due service of suit summons upon him, the defendant did not appear before this Court. Hence, defendant has placed exparte. Thus the evidence led by the plaintiff has remained unrebutted in respect of the dues payable by Judgment SC NO.105/2022 6 SCCH-6 the defendants to him. Therefore this Court has no other option but to rely upon the evidence led by the plaintiff which is more probable and reliable.
10. On perusal of ExP3sanction memorandum, it shows that plaintiff bank sanctioned Rs.1 lakh, 35 EMI of Rs.3,275/p.m. to the defendant for purchase of dress materials and an agreement cum deed of hypothication, was entered into between the plaintiff and the defendant for securing the said loan amount. Further ExP8 notice sent through advocate reveals that plaintiff has sent a notice on 2372021 to the defendant demanding him to pay the balance amount of the loan account. ExP9 postal receipt shows that the said notice was sent to the defendant and Ex P10postal acknowledgment. ExP11 account extract reveals that defendant is due of Rs.41,868=38 as on 07122021.
Thus from the oral evidence coupled with the documents produced by PW1 marked at ExP1 to 11, clearly establishes that defendant has violated the conditions of the agreement Judgment SC NO.105/2022 7 SCCH-6 entered into between plaintiff and defendant and defendant is due of Rs.41,868=38. But court has to verify and consider whether suit is filed within the limitation period or not.
11. It is worth to refer judgment of the Hon'ble High Court of Karnataka in the case of Shirajasab HusenSab Exambi Vs. Ashok Panditappa Kaddimani, reported in 1998 SCC Online Kar 141, wherein their lordships have held that, CIVIL PROCEDURE CODE, 1908 (Central Act No. V of 1908) -- Order VI Rule 1(a), Order VII Rule 11, Order VIII Rule 10 and Order XVII Rule 3 -- Is it permissible for the Court to go in to the merits and other factual allegations when the defendant does not appear inspite of the service of the suit summons? HELD -- Court shall have to pass a decree as prayed for, unless the relief itself is, prima facie barred by limitation.
12. In respect of limitation, article 19 of the Limitation Act, 1963 would applicable to the case on hand. It is worth to Judgment SC NO.105/2022 8 SCCH-6 refer article 19 of the Limitation Act, 1963, which is being reproduced below:
Article Description of Period of Time from suit Limitation which period begins to run 19 For Money payable Three Years When the loan is for money lent made
13. In the present suit as per materials on record loan was borrowed on 16112017 and the term of repayment of the loan was 3 years and the present suit was filed instituted on 03.02.2022 i.e., more than three years from 16112017. Even plaintiff has not issued any legal notice within the period of three years and only on 2372021 that is after more than 3 years of issue notice.
14. On bare perusal of above article prescribes a period of 3 years to institute a suit, and time under the said article begins to run from the date of the loan. But as per Article 19 of the Limitation Act read as follows:
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Sec.19. Effect of payment on account of debt or of interest on legacy - Where payment on account of a debt or of interest on a legacy is made before the expiration of the prescribed period by the person liable to pay the debt or legacy or by his agent duly authorised in this behalf, a fresh periods of limitation shall be computed from the time when the payment was made.
15. In view of the above said provision in the present case on bare perusal of Ex.P11/True Extract of the loan ledger of the defendant it is evident that defendant has paid the amount of Rs.368/ and Rs.140/ on 692021 and 7122021 which is not within the three years of borrowing of the loan i.e., on 16112017.
16. Apart from this plaintiff has not produced the loan ledger account statement of defendant with respect to the 2020 or before and has only produced ledger loan account statement for 112021 to 13122021. Apart from this, plaintiff has not produced entire loan ledger statement of Judgment SC NO.105/2022 10 SCCH-6 defendant to show that whether defendant has repaid any loan amount if any how much and till which period and what is balance amount due by defendant. Thus it appears that plaintiff has not approached the court with clean hands and suppressed the material facts with regard to actual amount due by defendant. Thus it appears that plaintiff has suppressed the material facts with regard to the any payments made by the defendant towards the loan amount and also to show that accused has acknowledge the liability by making the payment within the period of three years from the date of borrowing of loan 16112017. Hence, the suit of the plaintiff is barred by limitation. In view of above, the suit filed by the plaintiff is barred by limitation. Accordingly, I answer point No.1 in negative.
17. Point No.2: In view of finding given on Point No.1 this court proceeds to pass the following : Judgment SC NO.105/2022 11 SCCH-6 ORDER Suit of the plaintiff is hereby dismissed. (Dictated to the Stenographer directly on computer, after her typing, corrected, signed and then pronounced by me in open Court this the 15th day of March, 2024).
(CHETANA S.F.) IV ADDL. SMALL CAUSES JUDGE BENGALURU ANNEXURE LIST OF WITNESSES EXAMINED ON BEHALF OF THE PLAINTIFF/S:
PW1 : V.Vijay Shankar LIST OF DOCUMENTS MARKED ON BEHALF OF THE PLAINTIFF/S:
ExP1 Authorisation letter, ExP2Loan application, ExP3Sanction memorandum, ExP4Agreement cum deed of hypothication, ExP5Enclosure, ExP6Certificate of loan papers obtained, ExP7Hypothication letter, Judgment SC NO.105/2022 12 SCCH-6 ExP8Notice, ExP9Postal receipt, ExP10Postal acknowledgment, ExP11Loan ledger account extract. LIST OF WITNESSES EXAMINED ON BEHALF OF THE DEFENDANT/S:
None LIST OF DOCUMENTS MARKED ON BEHALF OF THE DEFENDANT/S:
Nil
(CHETANA S.F.)
IV ADDL. SMALL CAUSES JUDGE
BENGALURU
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