Bangalore District Court
M/S. Bank Of Maharashtra vs M/S. Sans Enterprises on 27 September, 2018
IN THE COURT OF LXIX ADDITIONAL CITY CIVIL &
SESSIONS JUDGE, BENGALURU CITY (CCH-70)
Present: Sri T.P.Ramalinge Gowda,B.Sc.,LL.M.,MBA.
LXIX Additional City Civil and
Sessions Judge,
Bengaluru.
Dated this the 27th day of September, 2018
O.S. NO.7913/2016
Plaintiff : M/s. Bank of Maharashtra
A body corporate constituted under
The Banking Companies (Acquisition
And Transfer of undertakings) Act
1969 (Act V of 1969) having its
Head Office at No.1501, Lokmangal
Shivajinagar, Pune 411 005
Maharashtra State and Branches inter
Alia one at First Floor, GHS Centenary
Building, GHS Road, Hampankatta,
Mangalore 575 001, Karnataka
Represented by its Chief Manager
Sri. Shiva Ramaiah.
(By Sri V.B Ravi Shankar Advocate)
Vs.
Defendants : 1. M/s. Sans Enterprises
Industrial Area
Near Albuquerque Tile Factory
Holge bazaar,
Mangalore 575 001
2. Sri. Samuel Soans
Father's name not known
Age: Major
Residing at D.No.4-474.
Near UBML School
Mission Compound
Balmatta, Mangalore 575 002.
2 OS No. 7913/2016
3. Sri. V Basavaraju,
S/o. Sri. Veerabhadraiah
Age: Major
Residing at No.86/A
10th Main, 2nd Stage
West C Road, Bovipalya,
Bangalore 560 086
4. Sri. K Praveen
Father's name not known
Age: Major
Residing at Poovappa Compound
Yenmeker, Bolar,
Mangalore.
5. Smt. Vinaya Soans
W/o. Sri. Samuel Soans
Age: Major
Residing at D.No.4-474.
Near UBML School
Mission Compound
Balmatta,
Mangalore 575 002
(Exparte)
Date of institution of the suit 16.11.2016
Nature of the suit Money Suit
Date on which the judgment was 27.9.2018
pronounced
Total duration : Days Months Years
11 10 1
3 OS No. 7913/2016
JUDGMENT
Plaintiff sues for recovery of Rs. 8,02,137/- with future interest at the rate of 14.50% p.a. (inclusive of 2% penal interest) from the date of suit till realization of same and court cost from defendants with the foundation of material facts that the first defendant is a partnership firm registered under the Partnership Act carrying business in manufacturing spices and masala powder and D2 and D3 are the partners of the firm. The Plaintiff sanctioned the loan of Rs. 3,00,000/- to the defendants on 13.7.2000 and the Defendants mortgaged their immovable property and they agreed to pay interest at 16.50 p.a. and in case of default to pay installments they agreed to pay overdue interest at 2% pa. compounded monthly. Defendant No.2 to 5 have stood as guarantors for the aforesaid loan availed by D1. It is further averred that as security for the repayment of the loan availed by them, 3rd Defendant mortgaged the immovable property which is described in the Schedule-A and executed Memorandum of Deposit of Title Deeds, Declaration for proposed equitable mortgage and Mortgage Letter of Confirmation and Equitable Mortgage in favour of the Plaintiff. The Defendants also hypothecated the movable property 4 OS No. 7913/2016 shown in Schedule `B` and executed Composite Deed of Hypothecation for all facilities in favour of the Plaintiff. The Defendants though agreed to repay the loan amount, failed and neglected to repay the loan amount as agreed and they are due to pay Rs. 3,03,519/-. Inspite of repeated requests and reminders, the first Defendant failed to operate the loan account satisfactorily and the loan account having become non performing asset, the Plaintiff left with no other choice issued legal notice on 16.5.2007 under SARFAESI Act calling upon the Defendants to pay the entire outstanding loan amount within 60 days from the date of receipt of the notice. Inspite of service of notice, the Defendants failed to comply notice and failed to obey the terms and conditions of the of the loan agreement and failed to operate the loan account satisfactorily and the Defendant No.2 and 3 have acknowledged the debt on 27.12.2011 for a sum of Rs. 3,84,419/- agreeing to repay the same as per the terms of the loan agreement alongwith the interest. The Defendants again acknowledged the debt on 25.8.2014 for a sum of Rs. 3,84,419/-. It is further contended that again on 20.9.2016 the Plaintiff issued legal notice to the Defendants and called upon them to pay a sum of Rs. 7,87,823/- as on 31.8.2016. The Plaintiff has calculated the 5 OS No. 7913/2016 interest from 1.10.2003 to 10.10.2016 which comes to Rs. 4,17,718/-. Totally the Defendants are liable to pay Rs. 8,02,137/-. Hence the plaintiff constrained to file the suit for recovery of Rs. 8,02,137/- together with interest at the rate of 14.50% per annum (inclusive of 2% penal interest ) from the date of suit till realization.
2. Inspite of service of summons through court and through paper publication in Samyuktha Karnataka Daily Newspaper dated 24.12.2017, the defendants remained absent and hence placed exparte.
3. Sri S.J.Mokashi, Assistant General Manager of Plaintiff Bank is examined as PW.1 and got marked 12 documents.
4. Heard the arguments of counsel for Plaintiff.
5. Perused the papers.
6. In the light of above prayer of plaintiffs in the suit on hand and available materials, following points fall for decision making of this court:-
1. Whether the plaintiff proves that defendants are liable to pay 8,02,137/- together with interest at the rate of 14.50% per annum (inclusive of 2% penal interest ) from the date of suit till realization. ?
2. What order?6 OS No. 7913/2016
7. This court on appreciation of unchallenged pleadings and evidence of PW.1 and unrebuttal documents at Ex.P1 to P.12 with reference to prevailing relevant legal aspects, give finding to the above points as follow:-
Point No.1 : Partly in Affirmative;
Point No.2 : As per final order on the
following;
REASONS
8. POINT NO.1: The fact asserted with support of above suit claim need not be reiterated. Inspite of service of summons, the defendants remained absent and placed exparte. The Assistant General Manager of Plaintiff Bank is examined as PW.1. PW. 1 reiterated the plaint averments in his affidavit in lieu of examination in chief. Evidence of PW.1 remained unchallenged. Plaintiff has produced Letter of Request, Letter of Partnership, DP Note, Letter of Guarantee, Memorandum of Record, Equitable Mortgage, Mortgage Declaration for proposed equitable mortgage, Sale Deed, Composite Deed for Hypothecation, 3 Balance and Security Confirmation Letters and Legal notice, which are marked as Ex.P.1 to 12 respectively. All the above noted rebuttal documents fortify the above version of plaintiffs. Unrebuttal 7 OS No. 7913/2016 materials, unchallenged pleadings of Plaintiff and evidence of PW.1 abundantly establish the existence of version of Plaintiff. Suit claim of Plaintiff is within time. Suit claim is not barred by any law. Hence the plaintiff justified in establishing their case. On the other hand the Defendants have not come forward to represent their case. They have been placed exparte. Hence, there are no grounds whatsoever to discard the suit claim of Plaintiff for 8,02,137/- with interest at the rate of 14.50% p.a (inclusive of 2% penal interest) from the date of suit till realization. Accordingly, point No.1 is answered in affirmative.
10. POINT NO.2: In the light of findings on above point suit on hand to be decreed partly with cost. In the result, this court proceeds to pass following;
O R D E R
Suit is decreed with cost against
defendants.
Defendant shall pay Rs. 8,02,137/- together with interest at the rate of 14.50% per annum inclusive of 2% penal interest from the date of suit till realization and court cost to the plaintiff.
Draw decree accordingly.
(Dictated to the JW on computer, corrected, signed and then pronounced by me in the open court, on this the 27th day of September, 2018).
(T.P.Ramalinge Gowda) th 69 Addl.City Civil & Sessions Judge, Bangalore.
8 OS No. 7913/2016SCHEDULE. A All that piece and parcel of the property bearing No. 29, th 15 Main, 3rd Stage, 4th Block, NHCS Layout, Basaveswaranagar, Bengaluru 560 079 (carved out of Sy. No. 28/1, 27, 26, 86/4, 86/2 and 85 situated in Saneguruvanahalli) measuring East to West 40 feet and North to South 60 feet, bounded on the;
East by : Site No. 28
West by : Road
North by ; Site No.1
South by ; Road
SCHEDULE. B
First and exclusive charge and security by way of hypothecation security charge in favour of the Bank over the Borrower`s present and future movable plants, machineries, goods, stocks of raw materials, items, inventories, stocks in process, semi-finished and finished goods, stores and spares not relating to plant and machinery (consumable stores and spares) stock in trade, goods in process, movable in transit, bills receivable and book debts and all of the borrower`s other movable assets and properties both present and future situated or located any place and now lying, being affixed or installed at any place at any time and the borrower`s goodwill and all outstanding monies, claims receivables, book debts due or become due to the borrowers at any time or from time to time, and all of the borrower`s rights, titles and interest therein.
A N N E X U R E List of witnesses examined for plaintiff:
PW.1 : S.J. Mokashi 9 OS No. 7913/2016 List of witnesses examined for defendants:
-Nil-
List of documents exhibited for plaintiff:
Ex.P.1 : Credit Letter Ex.P.2 : Letter of Partner Ship Ex.P.3 : Promissory Notice Ex.P.4 : Letter of guarantee Ex.P.5 : Mortgage record Ex.P.6 : Mortgage Declaration Ex.P.7 : Sale Deed Ex.P.8 : Composite Deed for hypothecation Ex.P.9 to 11 : Conformation Letters Ex.P.12 : Office Copy Legal Notice
List of documents exhibited for defendants:
-Nil- Digitally signed by T P
RAMALINGE GOWDA
TP DN: cn=T P RAMALINGE
GOWDA,ou=GOVERNMENT
RAMALINGE OF KARNATAKA,o=HIGH
COURT OF
KARNATAKA,st=Karnataka,c=I
GOWDA N
Date: 2018.09.30 05:22:38 IST
(T.P.Ramalinge Gowda)
th
69 Addl.City Civil & Sessions Judge,
Bangalore.
10 OS No. 7913/2016