Bangalore District Court
Bank Has Stated In His ... vs No on 14 October, 2015
IN THE COURT OF THE SMALL CAUSES, AT BANGALORE
(SCCH-7)
Dated this, the 14th day of October, 2015.
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.574/2015
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 other places and
a Branch called as;
K.R.Puram Branch,
Bangalore.
Represented by its Senior Branch
Manager K. Narasimha Rao,
Aged about 56 years.
(By Smt. M.R.Rajini, Adv.,)
V/s
1. S.V. Rajanna, ..... DEFENDANT
S/o B.M.Venkataswamy,
Aged about 42 years,
Santhehalli Village and Post,
MALUR- 563 130.
SCC-7 2 S.C.574/2015
2. K.Muniyappa,
S/o Munishamappa,
Aged about 50 years,
Kempapura Village,
Hasigala Post,
Hoskote Taluk-562 114.
Bangalore Rural Dist.
(D-1 By Sri. Ramesha. D., Adv.,)
(D-2 Exparte)
1. Date of Institution : 05.06.2015
2. Nature of Suit : Recovery of Money
3. Date of Evidence : 01.10.2015
4. Date of Judgment : 14.10.2015
5. Total duration : YEAR/S MONTH/S DAYS
00 04 09
(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 Defendants No.1 and 2 for recovery of Rupees 38,716/- with interest at the rate of 16.50% p.a. compounded monthly, from the date of suit till realization in full, with costs.
SCC-7 3 S.C.574/20152. 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, Dakshina Kannada and one of its Branch Office at the address mentioned in the cause title of the plaint and its case is represented by its Senior Branch Manager Sri.K.Narasimha Rao, who is duly authorized and competent to file the present suit as against the Defendants.
b) The 1st Defendant during the usual course of the transactions with it, requested for personal loan, with a loan application dated 21.07.2009 and after considering the request of the Defendant No.1, it sanctioned a loan of Rupees 60,000/- in Loan Account No.04207170008580 on 25.07.2009 and the Defendant No.1 availed and utilized the said loan facility, for the purpose, for which, it was granted.
c) The Defendant No.1 agreed to repay the said loan facility of Rupees 60,000/- for value received in equal monthly installments of Rupees 1,411/- together with interest at the rate of 14.5% per annum, being 2.50% per annum, over and above the Syndicate Bank's Prime Lending Rate (PLR)/Prime Term Lending Rate (PTLR) rising or falling from time to time and notified on its notice board or published in newspaper or made known in the statement to the borrower at Calendar SCC-7 4 S.C.574/2015 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 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 No.1 has executed Consideration Receipt and General Agreement, both dated 25.07.2009 in its favor.
d) The 2nd Defendant voluntarily agreed and stood as Surety/Guarantor for prompt and regular repayment of the said credit facility availed by the 1st Defendant, as per Guarantee Agreement, dated 25.07.2009 executed in its favour.
e) The 2nd Defendant stood as Surety/Guarantor for the credit facility availed by the 1st Defendant. The liability of the 2nd Defendant is Co-extensive with that of the 1st Defendant. Further, the Surety/Guarantee offered by the 2nd Defendant is a continuing guarantee and continues to exist, till the entire dues/balance outstanding/over drawings are cleared by the 1st Defendant. In the circumstances, both the Defendants are jointly, severally, personally and individually, due and liable to pay the balance outstanding to it.
f) After availing and utilizing the loan, the Defendants, failed to honour the terms and conditions of the loan, by failing to repay the same in time, as agreed and undertook by them and have thus become defaulters.
SCC-7 5 S.C.574/2015g) Inspite of repeated requests, remainders, demands and personal approaches and even after grant of sufficient time to clear the balance outstanding, the Defendants have not cleared the entire balance outstanding to it. Having no other option, it has approached this Hon'ble Court for seeking recovery of the balance outstanding.
h) The present rate of interest pertaining to the loan account of the Defendant is 16.5% per annum, with monthly rests and an additional 2% penal interest as per the Agreement, dated 25.07.2009.
i) As on the date of filing of the suit, all the Defendants are due and liable to it, a sum of Rupees 38,716/- along with interest thereon at the rate of 16.5% per annum compounded monthly, from the date of suit till realization in full.
j) 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 dates cannot be manipulated. The said Software is Foolproof and Tamperproof. The Software does not allow any unlawful alternations or unlawful debits. The printout of the computerised Statement of Account shows the Correct Data as mentioned therein. The statement of Account maintained by it is in accordance with the provisions of Section 2-A of Banker's Books of Evidence Act, 1891.
SCC-7 6 S.C.574/2015k) 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.
l) 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. In response to the suit summons, the Defendant No.1 has appeared before this Court through his Learned Counsel. But, inspite of giving sufficient opportunities, the Defendant No.1 has not filed the written statement.
4. Though the suit summons was duly served on the Defendant No.2 through paper publication, he was remained absent and hence, he is placed as exparte on 25.08.2015.
5. In order to prove its case, the Plaintiff Bank has examined its Assistant 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.
6. Heard the arguments by the Learned Counsel appearing for the Plaintiff Bank. The Learned Counsel appearing for the Defendant No.1 has not addressed the arguments on merits.
SCC-7 7 S.C.574/20157. Now, the Points that arise for my consideration are as follows;
POINTS
1. Whether the Plaintiff Bank is entitled for a sum of Rupees 38,716/- from the Defendants No.1 and 2 jointly and severally with current and future interest at the rate of 16.50% p.a. compounded monthly, from the date of suit till its realization, with costs as prayed for?
2. What Order?
8. 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
9. POINT NO.1 :- The Plaintiff Bank has filed this suit as against the Defendants No.1 and 2 for recovery of Rupees 38,716/- with interest at the rate of 16.50% p.a. compounded monthly, from the date of suit till realization in full, with costs.
10. The P.W.1, who is the Assistant Manager of the Plaintiff Bank has stated in his examination-in-chief that, the 1st Defendant during the usual course of the transactions with their Bank, requested for personal loan, with a loan application SCC-7 8 S.C.574/2015 dated 21.07.2009 and after considering the request of the Defendant No.1, their Bank sanctioned a loan of Rupees 60,000/- in Loan Account No.04207170008580 on 25.07.2009 and the Defendant No.1 availed and utilized the said loan facility, for the purpose, for which, it was granted. He has further stated that, the Defendant No.1 agreed to repay the said loan facility of Rupees 60,000/- for value received in equal monthly installments of Rupees 1,411/- together with interest at the rate of 14.5% per annum, being 2.50% per annum, over and above the Syndicate Bank's Prime Lending Rate (PLR)/Prime Term Lending Rate (PTLR) rising or falling from time to time and notified on their Bank's notice board or published in newspaper 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 No.1 has executed Consideration Receipt and General Agreement, both dated 25.07.2009 in favour of their Bank. He has further stated that, the 2nd Defendant voluntarily agreed and stood as Surety/Guarantor for prompt and regular repayment of the said credit facility availed by the 1st Defendant, as per Guarantee Agreement, dated 25.07.2009 executed in favour of their Bank. He has further stated that, the 2nd Defendant stood as Surety/Guarantor for the credit facility availed by the 1st SCC-7 9 S.C.574/2015 Defendant and the liability of the 2nd Defendant is Co-extensive with that of the 1st Defendant and the Surety/Guarantee offered by the 2nd Defendant is a continuing guarantee and continues to exist, till the entire dues/balance outstanding/over drawings are cleared by the 1st Defendant and in the circumstances, both the Defendants are jointly, severally, personally and individually, due and liable to pay the balance outstanding to it.
11. To corroborate the oral evidence of P.W.1, the Plaintiff Bank has produced Ex.P.1 Loan Application dated 21.07.2009, Ex.P.2 Consideration Receipt dated 25.09.2009, Ex.P.3 General Agreement dated 25.07.2009 and Ex.P.4 Guarantee Agreement dated 25.07.2009.
12. On perusal of the contents of Ex.P.1 to Ex.P.4, it clearly goes to show that, the Defendant No.1 has availed a loan of Rupees 60,000/- from the Plaintiff Bank on 25.07.2009 for his domestic purpose by executing necessary and required documents in favour of the Plaintiff Bank agreeing to repay the said loan with interest at the rate of 14.50% per annum with monthly rests or at such other rate of interest as may be decided by the Plaintiff Bank or as per the Directives of the Reserve Bank of India issued from time to time for value received and also penal interest at the rate of 2.50% in case of default, in equal monthly installments of Rupees 1,411/- each and the Defendant No.2 stood as Surety/Guarantor for the said credit facility availed by the 1st Defendant by executing Ex.P.4 Guarantee Agreement dated 25.07.2009 in favour of the Plaintiff SCC-7 10 S.C.574/2015 Bank and it is a continuing guarantee and continues to exist, till the entire dues/balance outstanding/over drawings are cleared by the 1st Defendant and in the circumstances, both the Defendants are jointly, severally, personally and individually, due and liable to pay the balance outstanding to the Plaintiff Bank.
13. The P.W.1 has stated that, after availing and utilizing the loan, the Defendants, failed to honour the terms and conditions of the loan, by failing to repay the same in time, as agreed and undertook by them and have thus become defaulters. 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 Defendants have not cleared the entire balance outstanding to their Bank and having no other option, their Bank has approached this Hon'ble Court for seeking recovery of the balance outstanding. He has further stated that, as on the date of filing of the suit, the Defendants are due and liable to their Bank, a sum of Rupees 38,716/- along with interest thereon at the rate of 16.5% per annum compounded monthly, from the date of suit till realization in full. He has further stated that, the printout of the computerised Statement of Account shows the correct data as mentioned therein and the statement of Account maintained by their Bank is in accordance with the provisions of Section 2-A of Banker's Books of Evidence Act, 1891.
SCC-7 11 S.C.574/201514. For consideration of the said oral version of P.W.1, the Plaintiff Bank has produced Ex.P.5 Statement of Account along with Certificate relating to the Defendants loan account, which clearly disclosed that, as on 31.05.2015, a sum of Rupees 38,716-40 with up to date interest is due from the Defendants to the Plaintiff Bank in respect of the above said loan and the Defendants are very irregular in making repayment of the loan installments and as such, the said amount is due by them to the Plaintiff Bank. The suit claim of Rupees 38,716/- is due from the Defendants, is clearly proved by the Plaintiff Bank by adducing the above said oral and documentary evidence.
15. On perusal of the said oral version of the P.W.1, it is further made crystal clear that, before filing the present suit, the Plaintiff Bank has made prompt efforts for recovery of the due loan amount and interest from the Defendants by taking necessary and required request and demands. Since, the Defendants did not care to repay the outstanding loan amount with interest to it, the Plaintiff Bank, as no other way, has filed the present suit. Therefore, the Plaintiff Bank has cause of action for filing the present suit.
16. The P.W.1 has stated that, the suit filed is in time and is within the period of Limitation as per the provisions of the Indian Limitation Act, 1963.
17. The date of loan is on 25.07.2009. The Plaintiff Bank has filed the present suit on 05.06.2015. But, based on the SCC-7 12 S.C.574/2015 same, it cannot be said that, the suit filed by the Plaintiff Bank as against the Defendants is barred by law of Limitation and as such, it is not maintainable, as, on perusal of the entries made in Ex.P.5 Statement of Account, it clearly goes to show that, the last payment made by the Defendants to the loan account is on 08.12.2014, which clearly disclosed that, within 3 years from the said date, the Plaintiff Bank has filed the present suit. Therefore, the suit filed by the Plaintiff Bank as against the Defendants is well within time and as such, it is maintainable.
18. Based on the above said material evidence, it can be safely held that, as on the date of filing of the present suit, a sum of Rupees 38,716/- is due from the Defendants to the Plaintiff Bank. To deny or to discard the same, nothing is available on record on behalf of the Defendants, as, though the Defendant No.1 has appeared before this Court through his Learned Counsel, inspite of giving sufficient opportunities, he has not filed the written statement to contest the case of the Plaintiff Bank and though the suit summons was duly served on the Defendant No.2 through paper publication, he was remained absent and hence, he is placed as exparte. The non- filing of the written statement by the Defendant No.1 to contest the case of the Plaintiff Bank and the non-appearance of the Defendant No.2 in the present suit clearly implies that, the Defendants have indirectly admitted the entire case of the Plaintiff Bank, which has been made by it as against them. Hence, the Defendants are liable to pay the suit claim of Rupees 38,716/- to the Plaintiff Bank.
SCC-7 13 S.C.574/201519. The P.W.1 has stated that, the present rate of interest pertaining to the loan account of the Defendants is 16.5% per annum, with monthly rests and an additional 2% penal interest as per the Agreement dated 25.07.2009. He has further stated that, the Defendants are jointly, severally, personally and individually liable to pay a sum of Rupees 38,716/- with interest at the rate of 16.50% p.a. compounded monthly from the date of the suit till realization in full in favour of their Bank. He has further stated that, 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 their knowledge.
20. Based on the entries made in Ex.P.5 Statement of Account with Certificate, this Court has already come to the conclusion that, the Defendants are very irregular in making repayment of the loan amount and they have dragged the Plaintiff Bank to file the present suit for recovery of the suit claim of Rupees 38,716/-. Even the Defendants did not care to contest the case of the Plaintiff Bank. From this, it is made crystal clear that, the intention of the Defendants is not to pay the said outstanding amount to the Plaintiff Bank. By executing Ex.P.2 and Ex.P.3, the Defendants have agreed to repay the loan amount with an interest at the rate of 14.50% per annum with monthly rests and variable interest from time to time and also penal interest at the rate of 2.50% in case of default. Under such Circumstances, there are merits in the claim of current and future interest at the rate of 16.50% per annum on the suit SCC-7 14 S.C.574/2015 claim of Rupees 38,716/- from the date of the suit till its realisation. The Defendants have dragged the Plaintiff Bank for recovery of the suit claim. Therefore, the Defendants are liable to pay the current and future interest at the rate of 16.50% p.a., compounded monthly rests on the suit claim of Rupees 38,716/- till its realisation, with costs.
21. In view of the above said reasons, this Court has come to the conclusion that, the Plaintiff Bank is entitled for Rupees 38,716/- from the Defendants jointly and severally with current and future interest at the rate of 16.50% p.a., compounded monthly rests from the date of suit till its realisation with costs. Hence, the suit filed by the Plaintiff Bank as against the Defendants is liable to be decreed with costs. Accordingly, I answered Point No.1 in the Affirmative.
22. 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 Defendants are hereby directed to pay a sum of Rupees 38,716/- jointly and severally to the Plaintiff Bank with interest at the rate of 16.50% p.a. compounded monthly, SCC-7 15 S.C.574/2015 from the date of suit till realization, within two months from the date of this Order.
If the Defendants fail 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 directly on computer, typed by her, corrected and then, pronounced by me in the open Court on this, the 14th day of October, 2015.) (INDIRA MAILSWAMY CHETTIYAR) IX Addl. Small Causes Judge & XXXIV ACMM, Court of Small Causes, Member, MACT-7, Bangalore.
ANNEXURE
1. WITNESSES EXAMINED BY THE PLAINTIFF :-
P.W.1 : Sri. S. Radhakrishna
2. DOCUMENTS MARKED BY THE PLAINTIFF :-
Ex.P.1 Loan Application dated 21.07.2009
Ex.P.2 Consideration Receipt dated 25.09.2009
Ex.P.3 General Agreement dated 25.07.2009
Ex.P.4 Guarantee Agreement dated 25.07.2009
Ex.P.5 Statement of Account with Certificate
SCC-7 16 S.C.574/2015
3. WITNESSES EXAMINED BY THE DEFENDANTS :-
-NIL-
4. DOCUMENTS MARKED BY THE DEFENDANTS :-
-NIL-
(INDIRA MAILSWAMY CHETTIYAR) IX Addl. Small Causes Judge & XXXIV ACMM, Court of Small Causes, Member, MACT-7, Bangalore.