Bangalore District Court
Canara Bank vs Sri. Shiva Kumar. B. Major on 16 July, 2022
SCH 2 SC No.274/2020
KABC020054422020
Form No. (9)
Civil (R.P.91) TITLE SHEET FOR JUDGMENT IN SUIT
IN THE COURT OF THE VI ADDL. JUDGE AND ADDL.
CHIEF METROPOLITAN MAGISTRATE, COURT OF
SMALL CAUSES, BENGALURU CITY (SCCH-2).
S.C.NO.274/2020
Present Smt. Shainey K.M., BAL.LLB.,
VI ASCJ & ACMM.,
:
Bengaluru.
Dated this the 16th day of July, 2022
PLAINTIFF : Canara Bank,
Peenya 3rd Stage, Bangalore.
Represented by its duly
constituted
GPA Holder & Attorney,
Sri. Suresh Dhaudti. (Major),
S/o Late Sri. P.S. Dhaudti.
(By Sri. T. Mohan Raj, Advocate)
- Vs. -
DEFENDANT : Sri. Shiva Kumar. B. Major,
S/o Sri Bettaiah, 34 years,
#433, 8th main road,
RVS School road,
Lakshminagar,Nandhini
Layout, Bangalore-560 096.
(Ex-parte)
SCH 2 SC No.274/2020
Date of institution of : 27.02.2020.
suit
Nature of suit : Recovery of Money.
Date of commencement : 05.07.2022.
of recording evidence
Date of judgment : 16.07.2022
pronounced
Total duration : Year/s Month/s Day/s
02 04 19
:JUDGMENT:
This is a suit for recovery of money of Rs. 83,981.18/- with interest @ 9.66% p.a. compounded monthly plus 2% penal interest p.a., from the date of suit till realization from the defendant.
2. PLAINT AVERMENTS IN BRIEF:
2.1 The plaintiff is a body corporate constituted under the Banking Companies (Acquisition Transfer of Undertakings) Act, having its Head office at no: 112, JC road, Bangalore.
2.2 It is averred that on 20.08.2015, defendant submitted loan application for sanction of loan for purchase of vehicle under Pradhan Mantri Mudra SCH 2 SC No.274/2020 Yojana Scheme. Accordingly, defendant had offered the Hypothecation of the Atul Gem Cargo XL pick up 3 wheeler vehicle to be purchased as security to the proposed loan and sought for Rs 1,73,000/ as loan. 2.3 As per the sanction terms and conditions the defendant was sanctioned with loan amount of Rs.
1,73,000/- and he had executed deed of Hypothecation deed on 21.08.2015 in favor of the plaintiff. The loan being under schematic lending, it did not attract/warrant any guarantor/joint borrower. As per sanction terms and conditions, the defendant was required to remit the EMI and the entire loan was to be repaid in 36 EMIs of Rs. 5,727/- each and the last installment of Rs. 5,773/-. The first such EMI was to commence from December 2015 onwards. Accordingly, the defendant had executed necessary standing instruction in favor of the bank in the prescribed format. It is contended that defendant had agreed to remit necessary charges, levies, SCH 2 SC No.274/2020 commission, incidental charges etc., and had also agreed to pay interest at the rate of 10.55 % per annum compounded with monthly rests on the outstanding liability in the loan account. The defendants had also agreed to pay penal rate of interest at 2 % p.a., in case of default in repayment of the EMIs.
2.4 It is contended that defendant has neither repaid the EMIs inspite of repeated demands and personal contacts made by the plaintiff bank from time to time for recovery of the dues, nor contacted the plaintiff bank. So, that on 6.1.2020, the plaintiff has issued a legal notice to the defendant calling him to repay the loan amount. Despite due service of legal notice, the defendant did not repay the loan and hence, this suit.
3. Suit summons has been served on defendant by way of substitute service. Pursuant to suit summons defendant did not appear despite due service.
SCH 2 SC No.274/2020 Consequently, he has been placed ex-parte vied order dated 28.02.2022.
4. The plaintiff in support of suit claim examined its Assistant Manager, as P.W-1. Ex.P-1 to P-13 were marked as exhibits for the plaintiff.
5. I have heard arguments of learned counsel for the plaintiff. Following points that arise for my consideration:
POINTS
1) Whether the plaintiff proves that on 21.08.2015, the defendant has bor-
rowed loan of Rs.1,73,000/- from the plaintiff by executing hypothecation deed agreeing to repay the loan with in 36 monthly with interest @ 10.55 % per annum?
2) Whether the plaintiff proves alleged default by defendant in repaying the loan?
3) Whether plaintiff is entitled for suit claim?
4) What order or decree?
6. My answers are as under.
SCH 2 SC No.274/2020
POINT No-1 to 3 : In the Affirmative.
POINT No-4 - : As per final order; for
following
REASONS
7. POINT No. 1 to 3:- To avoid repetition of facts and for sake of convenience, above points are taken up together for common discussion, as under:
8. Sri. Ramesh. L, the Assistant Manager of the Plaintiff Bank was examined as P.W.1 to prove the suit transaction. P.W.1 has filed affidavit in lieu of oral evidence and reiterated the plaint averments in evidence. Branch Manager of plaintiff-bank has authorized this witness to give evidence before the court and it is evident from perusal of Ex:P1- Authorization letter. ExP:2 is the Identity card of this witness.
Pw:1 has deposed that, upon the application of defendant for vehicle loan, plaintiff-bank has sanctioned loan of Rs.1,73,000/- to defendant on SCH 2 SC No.274/2020 21.08.2015, upon execution of necessary loan documents by the defendant and to substantiate his contention he has produced loan application and Loan Sanction letter at ExP:3 and 4 respectively.
Pw:1 deposed that the defendant had agreed to repay the loan with in 36 monthly installments from the date of sanction of loan with interest @ 10.55 % p.a. or at revised rate by RBI and hypothecated the vehicle and to substantiate his contention plaintiff has produced Hypothecation deed and Letter evidencing execution of Documents at ExP:5 and 6 respectively. Evidence of P.W-1 discloses that, the defendant has failed to repay the installments as per agreed terms, so , plaintiff-bank has issued legal notice to the defendant calling upon him to repay the loan and it is evident from perusal of ExP:7-Legal notice. ExP-8 is the registered postal receipt in respect of legal notice. ExP:9 is the postal acknowledgement without signature of addressee.
SCH 2 SC No.274/2020
9. To prove the outstanding dues payable by the defendant, the plaintiff has produced statement of loan account for the period from 1.1.2015 to 23.1.2010 at Ex.p.10 and perusal of same discloses that, an amount of Rs.83,981.18/- is outstanding due to be paid by the defendant. Ex.P.11- is certificate under section 2A(b) and (c) of the Banker's Book Evidence Act.
10. The defendant has executed letter of revival on 17.10.2017 as per ExP:12. The plaintiff bank has issued legal notice on 6.1.2020 as per ExP:7 and thus it is clear that the suit is filed within period of limitation. It is deposed that, despite service of legal notice, the defendant did not repay the loan amount with interest.
11. The oral evidence of P.W.1 is supported with documentary evidence. The positive evidence adduced by P.W.1 inspires confidence of the Court.
SCH 2 SC No.274/2020 The loan transaction is not at all denied by the defendant. The signatures of defendant appearing in loan application form, Hypothecation deed, Sanction letter, letter of revival and letter evidencing execution of documents are not at all challenged by the defendant.
The cogent and corroborative evidence adduced by the plaintiff has remained unchallenged and uncontroverted. I have no reason to disbelieve the positive evidence adduced by plaintiff. Moreover, the defendant has remained absent and not contested the case of the plaintiff as well.
12. Interest:- According to the plaintiff the loan was advanced to the defendant for commercial purpose to buy vehicle. The agreed rate of interest is 10.55% per annum as per Ex.P.4-sanction letter and ExP:5 Hypothecation deed. The plaintiff has claimed current and future interest at the rate of 9.66 % per annum compounded monthly plus 2% penal interest.
SCH 2 SC No.274/2020 In the event of the borrowers default in payment of any one installment or in regularizing or in clearing the account as per terms agreed upon, the borrower shall be liable to pay interest at overdue rate of 2% per annum over and above the rate of interest charged on the advanced from the date of such default till regularizing or clearing the account in full as the case may be and it is evident from perusal of condition no: 6 mentioned in Ex:P-5, the Hypothecation deed. Therefore, plaintiff is entitled for current and future interest @ 9.66% + 2% per annum from the date of suit till the date of realization. For these reasons, Hence, Point No.1 and 2 are answered in the Affirmative and Point No.3 is answered in affirmative.
13. POINT No.4:- For the reasons assigned supra, following order is passed:
:ORDER:
Suit of the plaintiff is decreed in part SCH 2 SC No.274/2020 with costs. The plaintiff is entitled to recover a sum of Rs.83,981.18/-, with current and future interest at rate of 9.66% + 2% per annum, from the date of suit till the date of realization.
The defendant is hereby directed to pay the decreetal amount within 3 months from the date of order.
Draw decree accordingly.
(Dictated to the stenographer directly on the computer, corrected, signed and pronounced in open court on this the 16th day of July, 2022) (Smt. Shainey. K.M.) VI Addl. Small Causes Judge & XXXI ACMM, Bengaluru.
:: ANNEXURES ::
List of witnesses examined by the Plaintiff:-
P.W.1 -Sri. Ramesh .L List of documents marked on behalf of Plaintiff:-
Ex.P.1 - Authorisation letter
Ex.P.2 - attested copy of I.D. Card of P.W.1.
Ex.P.3 - Loan Application Form.
Ex.P.4 - Loan Sanction Letter
Ex.P.5 - Deed of Hypothecation.
SCH 2 SC No.274/2020
Ex.P.6 - Letter Evidencing Execution of
documents.
Ex.P.7 - Legal Notice
Ex.P.8 - Postal Receipt.
Ex.P.9 - Postal Acknowledgment.
Ex.P.10 - Statement of loan account Ex.P.11 - Bankers Book Evidence Act Certificate Ex.P.12 - Letter of Revival Ex.P.13 - Hosa Digantha newspaper List of witnesses examined by the Defendant:-
- Nil -
List of documents marked on behalf of Defendant:-
- Nil -
(Shainey. K.M.) VI Addl. Small Causes Judge & XXXI ACMM, Bengaluru.