Bangalore District Court
In The Present Suit Transaction. The vs Had Agreed To Repay The Said Loan Amount ... on 6 February, 2023
17 COM.O.S.1912/2022
IN THE COURT OF LXXXII ADDL.CITY CIVIL & SESSIONS
JUDGE, AT BENGALURU (CCH.83)
THIS THE 06TH DAY OF FEBRUARY 2023
PRESENT:
SMT. SUMANGALA S BASAVANNOUR.,B.COM,L.L.M.,
LXXXII ADDL.CITY CIVIL & SESSIONS JUDGE,
BENGALURU.
Com.O.S.No.1912/2022
BETWEEN:
Bank of Borada, A Body
Corporate constituted
by and under the
Banking companies
(Acquisition & Transfer
of undertakings) Act,
1970, having Heade
Office situated at Baroda
Bhavan, R C Dutt Road,
Alkapuri, Vadodara,
Gujarat State and
Interalia Branch office at
Cox Town Branch,
Bengaluru, represented
by its Chief Manager,
Mrs. Smriti Trivedi, W/o.
Raghavendra Dwivedi,
Aged about 35 years.
17 COM.O.S.1912/2022
: PLAINTIFF
(Represented by Sri.
Nagaraj N Damodar -
Advocate)
AND
Mr. Muni Chandrappa C T
S/o. Thimmegowda
Aged about 47 years
Proprietor
M/s. Kabballamma
Creations ## 77, 79,
SrigandhadaKavalu Main
Road, Kebehalla,
Sunkadakatte,
Bangalore-560 091
R/at. #380, Kebbehalli
Main Road, 2nd Cross,
Channappa Layout,
Sunkadakatte,
Bengaluru-560 091.
: DEFENDANT
(Defendant is placed
exparte as per order
dated 31.01.2023)
17 COM.O.S.1912/2022
Date of Institution of the
14.12.2022
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 03.02.2023
recording of evidence
Date on which judgment 06.02.2023
was pronounced
Total Duration Year/s Month/s Day/s
00 01 22
(SUMANGALA S BASAVANNOUR),
LXXXII Addl.City Civil & Sessions Judge,
Bengaluru.
JUDGMENT
This suit is filed by the Plaintiff for recovery of Rs.12,37,029.39/- with future and normal interest at the rate of 9.10% per annum together with penal interest at the rate of 2% per annum compounded monthly from 06.12.2022 to till realization.
17 COM.O.S.1912/20222. The Brief facts of the Plaint are as follows:-
The Plaintiff Bank is the Creditor, the Defendant is the Applicant in the present suit transaction. The Defendant being the Sole Proprietor of M/s. Kabballamma Creations had availed a Business Loan facility of Rs.10,00,000/- by executing necessary documents on 13.12.2019 under loan account No.109705207000017 [New A/c. No.73800600000710]. The borrower agreed to repay the said loan amount within 60 months in 58 EMI's of Rs.17,241/- each, together with interest at the rate of 9.10% p.a. with monthly rests. The Defendant had also been sanctioned a BGECL Loan of Rs.2,00,000/- on 17.08.2020 under Loan A/c. No.73800600000733, and the Defendant had agreed to repay the said loan amount within 36 months in 24 EMI's OF Rs.8,333.33 each commencing from 31.08.2020 along with agreed interest at the rate of 8% p.a. and variable from time to time as per the direction of the Reserve Bank of India, you had also agreed to pay the default interest at the rate of 2% p.a. if he default or fail to repay the loan Facility before the due date. Further the Defendant had also been sanctioned a loan under Subsidy Scheme for a sum of Rs.1,50,000/- on 07.08.2021 under loan A/c. No. 73800600001606 and the Defendant had agreed to repay the said amount within 36 months. After availing the said loan 17 COM.O.S.1912/2022 facilities from the Plaintiff Bank the borrower i.e., the Defendant after utilizing the said Loan Facility failed to adhere to the repayment schedule and thus became chronic defaulter.
Accordingly the Plaintiff Bank made repeated demands and requests to the Defendant to discharge the outstanding liability. But in spite of the same the Defendant did not come forward to make good his account.
The Defendant has failed to adhere to the repayment schedule and did not care to make payment of the debt due, inspite of repeated letters and reminders from the Plaintiff Bank. Thus the Plaintiff Bank got issued a Legal notice through their counsel to the Defendants on 16.04.2022 by RPAD, demanding the repayment of outstanding due, and the said Notice was returned un-served, the Defendant though residing in the said address has managed to send back the notice un- served. Hence the Plaintiff Bank is constrained to file this suit. The Defendant failed to adhere to the repayment schedule and did not care to make payment of the debt due, inspite of repeated letters and reminders from the Plaintiff Bank. Hence the Plaintiff Bank is constrained to file this suit. The Defendant after availing and utilizing the aforesaid loan Facility failed to honour the terms and conditions of the loan transactions and have become defaulter.
17 COM.O.S.1912/2022The Defendant in spite of repeated demands, personal letters has failed to repay the balance outstanding in the loan account. The Plaintiff producing the following documents executed by the Defendants along with other documents:-
1. Loan Application dt:09.12.2019
2. Sanction letter dt:13.12.2019
3. Letter of installment with acceleration clause dt:09.12.2019
4. D.P.Note [Sole-Proprietorship firm] dt:13.12.2019
5. Letter of Sole Proprietorship dt:13.12.2019
6. Declaration-Cum-Undertaking cum Authority dt:13.12.2019
7. General Undertaking dt:13.12.2019
8. Draft undertaking/ declaration [for risk fund] dt:13.12.2019
9. Composite Hypothecation Agreement dt:13.12.2019
10. Instrument of Hypothecation of Moveable Machinery dt:13.12.2019
11. Letter dt: 10.08.2020.
12. Acceptance of Offer for Pre approved BOB Guarancteed Emergency Credit Line Scheme dt: 17.08.2020
13. Sanction letter dt: 17.08.2020
14. Letter of Sole Proprietorship dt: 17.08.2020
15. D.P.Note [Sole-Proprietorship firm] dt: 17.08.2020
16. Letter of installment with acceleration clause dt:
17.08.2020
17. Loan cum hypothecation Agreement dt: 17.08.2020 18, Declaration-Cum-Undertaking cum Authority dt:
17.08.2020
19. Office copy of Legal Notice dt:16.04.2022
20. Postal receipts (1 in Nos.)
21. Unserved Postal covers (01 in Nos.)
22. Certificate issued by the DLSA dt:01.12.2022 17 COM.O.S.1912/2022
23. Statement of Account Extract along with Certificate.
It has initiated proceedings before the District Services Authority as per Sec.12A of the Commercial Courts Act, vide PIM No.1403/2022. Though the summons were issued to the Defendant by the DLSA, Bengaluru Urban, the Defendant remained absent and hence the matter could not be settled before the DLSA and the Certificate issued by the DLSA is also attached along with this suit.
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, he was placed ex-parte on 31.01.2023.
4. The Plaintiff has examined PW-1 and got marked Ex.P.1 to Ex.P.24. 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 ?17 COM.O.S.1912/2022
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 Pratima Naik. as PW.1. PW.1 in his evidence reiterated averments of the Plaint, and got marked Ex.P.1 to Ex.P.24.
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 17 COM.O.S.1912/2022 the plaintiff is not automatic on failure of the opposite party to put his defence. The Court can 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.20 discloses that the Defendant had availed a Business Loan facility of Rs.10,00,000/- by executing necessary documents on 13.12.2019 under loan account No.109705207000017 [New A/c. No.73800600000710]. The borrower agreed to repay the said loan amount within 60 months in 58 EMI's of Rs.17,241/- each, together with interest at the rate of 9.10% p.a. with monthly rests.
10. The Defendant had also been sanctioned a BGECL Loan of Rs.2,00,000/- on 17.08.2020 under Loan A/c. No.73800600000733, and the Defendant had agreed to repay the said loan amount within 36 months in 24 EMI's OF Rs.8,333.33 each commencing from 31.08.2020 along with agreed interest at the rate of 8% p.a. and variable from time to time as per the direction of the Reserve Bank of India, you had also agreed to pay the default interest at the rate of 2% p.a. if he default or fail to repay the loan Facility before the due date.
17 COM.O.S.1912/202211. The Defendant had also been sanctioned a loan under Subsidy Scheme for a sum of Rs.1,50,000/- on 07.08.2021 under loan A/c. No. 73800600001606 and the Defendant had agreed to repay the said amount within 36 months. After availing the said loan facilities from the Plaintiff Bank the borrower i.e., the Defendant after utilizing the said Loan Facility failed to adhere to the repayment schedule and thus became chronic defaulter.
12. The Defendant has failed to adhere to the repayment schedule and did not care to make payment of the debt due, inspite of repeated letters and reminders from the Plaintiff Bank. Thus the Plaintiff Bank got issued a Legal notice through their counsel to the Defendants on 16.04.2022 at Ex.P.20 by RPAD, demanding the repayment of outstanding due, and the said Notice was returned un-served, the Defendant though residing in the said address has managed to send back the notice un-served.
13. The Defendant in spite of repeated demands, personal letters has failed to repay the balance outstanding in the loan account.
17 COM.O.S.1912/202214. The Plaintiff produced several documents executed by the Defendants i.e., Letter of installment at Ex.P.4, Demand Promissory Note at Ex.P.5, Letter of Sole Proprietorship dt:13.12.2019 at Ex.P.6, Declaration-Cum-Undertaking cum Authority at Ex.P.7, General Undertaking dt:13.12.2019 at Ex.P.8, Draft undertaking/ declaration dt:13.12.2019 at Ex.P.9, Composite Hypothecation Agreement dt:13.12.2019 at Ex.P.10, Instrument of Hypothecation of Moveable Machinery at Ex.P.11, Letter dt: 10.08.2020 at Ex.P.12, Acceptance of Offer for Pre approved BOB Guarancteed at Ex.P.13, Letter of Sole Proprietorship dt: 17.08.2020 at Ex.P.15, D.P.Note dt:
17.08.2020 at Ex.P.16, Letter of installment with acceleration clause dt: 17.08.2020 at Ex.P.17, Loan cum hypothecation Agreement dt: 17.08.2020 at Ex.P.18 and Declaration-Cum-
Undertaking cum Authority dt: 17.08.2020 at Ex.P.19.
15. From Ex.P.22 and 23 the Statement of account extract speaks to the effect that total amount payable includes the interest accrued and therefore, Plaintiff has successfully proved that the Defendants have availed loan and have not repaid the same and are liable to pay the suit claim amount as on the date of suit. The Plaintiff has prayed future interest on the suit claim amount at 9.10% per annum together with penal interest at the rate of 2% per annum compounded monthly. However by considering the interest prevailing, it is proper to award interest 17 COM.O.S.1912/2022 @ 10% per annum from the date of suit.
16. The above mentioned transactions commenced from 13.12.2019 and the suit filed on 14.12.2022 is within the limitation period.
17. In spite of Paper publication, the Defendant had not appeared and denied the claim of the Plaintiff. Therefore, the evidence of PW.1 and Ex.P.1 to Ex.P.24 are remained unchallenged. Hence, the Plaintiff is entitle for recovery of the suit claim amount of Rs. 12,37,029.39/- with interest @ 10% per annum from the date of suit till realization. Hence, I answer this Point in "Partly Affirmative".
18. Point No.2 : -Therefore, I proceed to pass the following Order.
ORDER The Suit of the Plaintiff is decreed in part with cost.
The Defendant is hereby directed to pay Rs. 12,37,029.39/- to the Plaintiff, with future normal interest at the rate of 9.10% per annum from 06.12.2022 till realization.
17 COM.O.S.1912/2022Draw 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 06th day of February, 2023).
(SUMANGALA S BASAVANNOR), LXXXII Addl.City Civil & Sessions Judge, Bengaluru.
ANNEXURE LIST OF WITNESSES EXAMINED ON BEHALF OF THE PLAINTIFF PW-1 Pratima Naik LIST OF DOCUMENTS EXHIBITED ON BEHALF OF THE PLAINTIFF Ex.P.1 Authorization letter Ex.P.2 Loan application 17 COM.O.S.1912/2022 Ex.P.3 Sanction letter dtd.13.12.2019 Ex.P.4 Letter of installment Ex.P.5 Demand promissory note Ex.P.6 Letter of sole proprietorship dtd.13.12.2019 Ex.P.7 Declaration cum undertaking cum authority Ex.P.8 General undertaking dtd.13.12.2019 Ex.P.9 Draft undertaking/ declaration dtd.13.12.2019 Ex.P.10 Composite hypothication agreement dtd.13.12.2019 Ex.P.11 Instrument of hypothication of movables machinery dtd.13.12.2019 Ex.P.12 Letter dtd.10.08.2020 Ex.P.13 Acceptance of offer dtd.17.08.2020 Ex.P.14 Sanction of credit facility dtd.17.08.2020 Ex.P.15 Letter of sole proprietorship dtd.17.08.2020 Ex.P.16 Demand promissory note dtd.17.08.2020 Ex.P.17 Letter of installment dtd.17.08.2020 Ex.P.18 Loan cum hypothication agreement dtd.17.08.2020 Ex.P.19 Declaration cum undertaking cum authority dtd.17.08.2020 Ex.P.20 Office copy of legal notice dtd.16.04.2022 Ex.P.20(a) Postal receipts Ex.P.21 Unserved RPAD cover and notice marked as Ex.P.21(a) Ex.P.22 Statement of account with certificate (pg no.109 to 113) Ex.P.23 Statement of COVID account with certificate (pg no.114 to 119) Ex.P.24 Statement of subsidy loan account with certificate (pg no.120 to 121) LIST OF WITNESSES EXAMINED ON BEHALF OF THE DEFENDANT 17 COM.O.S.1912/2022 NIL LIST OF DOCUMENTS EXHIBITED ON BEHALF OF THE DEFENDANT NIL (SUMANGALA S BASAVANNOUR), LXXXII Addl.City Civil & Sessions Judge, Bengaluru.