Bangalore District Court
Syndicate Bank vs Sri.M.Gunaraghavendra on 23 November, 2016
IN THE COURT OF THE LXII ADDL. CITY CIVIL &
SESSIONS JUDGE (CCH-63), BANGALORE CITY.
PRESENT:
SRI. PARAMESHWARA PRASANNA ,
B.A., LL.B.,
LXII ADDL. CITY CIVIL JUDGE, (CCH-63)
BENGALURU
DATED: THIS THE 23rd DAY OF NOVEMBER, 2016
O.S.NO.489 OF 2016
PLAINTIFF Syndicate Bank,
A body corporate
Constituted under the Banking
Companies (Acquisition and Transfer of
Undertakings) Act of 1970, having its
Head Office at Manipal,
Udupi District-576 104,
Having its Branch at Malleswaram
5th Cross, No.45, Near K.C.General
Hospital, Bengaluru.
Represented by its Senior Branch
Manager.
(By M.R.Shashidhar, Advocate)
/Vs/
DEFENDANTS 1 Sri.M.Gunaraghavendra,
S/o D.Mani, Major,
Shop.No.10/1, 5th Cross,
Link road, Malleshwaram,
Bangalore-560 003.
2 Sri.K.S.Jagadeesh,
S/o Dri.K.S.Divakar Swamy,
Major,
2 O.S.No.489 /2016
No.36, 16th main road,
Gayathri Layout,
Basaveshwara Nagar,
Bangalore-560 079.
(Ex-parte)
1. Date of institution of the suit : 18.01.2016
2. Nature of the suit : Money Suit
3. Date of commencement of : 19.11.2016
recording of evidence
4. Date on which the judgment : 23.11.2016
was pronounced
5. Duration : Years months days
- 10 05
(Parameshwara Prasanna.B.,)
LXII ACCJ (CCH-63 )
BANGALORE
JUDGMENT
This suit is filed by the plaintiff Bank for recovery of money.
2. The case of the plaintiff Bank in brief is as follows:
The 1st defendant on 03.04.2012 applied for term loan of Rs.10 lakhs for his business purpose before the plaintiff-Bank and 3 O.S.No.489 /2016 the plaintiff Bank sanctioned Term loan of Rs.10 lakhs under "SYND MSE" Scheme to the 1st defendant as per its process note dated 22.5.2012. That on sanction of term loan of Rs.10 lakhs, the defendant executed a receipt acknowledging loan of Rs.10 lakhs and 1st defendant has also executed a Composite Hypothecation Agreement dated 23.5.2012 by undertaking to repay loan of Rs.10 lakhs in 60 monthly installments of Rs.41,522/- commencing from 30.06.2012 and ending on 30.04.2017 with interest @ BR+1+0.25 at 11.75% p.a. compounded monthly rests. The 2nd defendant stood as guarantor to the said loan and executed Guarantee Agreement on 23.05.2012 in respect of the loan amount and 2nd defendant authorized 1st defendant to execute Acknowledgment of debt on his behalf.
That subsequently on 27.03.2015 the 1st defendant executed a Acknowledgment of Debt in favour of the plaintiff Bank on 27.03.2015 by confirming and admitting the balance outstanding sum of Rs.8,36,219.89 together with interest on it from 1.3.2015 and he also executed fresh promissory note on 4 O.S.No.489 /2016 27.3.2015 by promising to pay said sum of Rs.8,36,219.89 to the plaintiff Bank with interest at 11.50% per annum. That the defendants defaulted in repaying the agreed installments regularly. Due to continuous default in payment of loan amount by the defendant, their loan account classified as NPA on 2.5.2014 in accordance with the directions issued by the RBI. That the plaintiff Bank on 17.11.2014 issued legal notice to the defendants to pay the amount due. The said legal notice returned back with endorsement "door locked". That as on date of filing of the suit, Rs.9,35,790/- is due and outstanding from the defendants and defendants are jointly and severally liable to pay the due amount. Since the defendants have not paid the said amount according the plaintiff, the plaintiff has been constrained to file suit for recovery of money.
3. After admitting of this suit, the summons was issued to the defendants, but as the summons could not be served to the defendants in ordinary manner, the summons issued to the defendants by way of Advertisement/Paper Publication in "Samyuktha Karnataka" dated 29.7.2016 by calling upon the 5 O.S.No.489 /2016 defendants to appear before the Court on 19.8.2016. Since inspite of service of paper publication as the defendants have not appeared before the court, they were placed ex-parte by this Court on 19.8.2016. Thereafter the case was posted for ex-parte evidence of the plaintiff side.
4. On behalf of the plaintiff Bank, its Senior Branch Manager Smt.Elizebth.C examined as Pw.1 and through her documents produced by the plaintiff Bank are marked as Exs.P.1 to Ex.P.11.
5. Heard arguments of the learned Advocate for the plaintiff. Perused the records.
6. The following points arise for the consideration of this Court:
1. Whether the plaintiff Bank is entitled for recovery of Rs.9,35,790/- from the defendants?
2. What Order or Decree?
7. The findings of the court on above points are as under:
Point No.1 : In the Affirmative Point No.2: As per final order for the following: 6 O.S.No.489 /2016
REASONS
8. POINT.No.1:
The plaintiff has filed this suit against the defendants for recovery of money.
The case of the plaintiff -Bank in nutshell is that, on the application of the 1st defendant, the 1st defendant was sanctioned with a term loan of Rs.10 lakhs by the plaintiff Bank on 22.05.2012 and on sanction of said loan, the 1st defendant executed the receipt acknowledging the loan amount and also executed Composite Hypothecation Agreement dated 23.5.2012 by undertaking to repay the loan amount in 60 monthly installments of Rs.41,522/- with interest at 11.75% per annum compounded monthly rests. The 2nd defendant stood as guarantor to the said loan. That subsequently, on 27.3.2015 1st defendant executed Acknowledgment of Debt by admitting outstanding sum of Rs.8,36,219.89 together with interest on it from1.3.2015 and also executed fresh promissory note to pay a sum of Rs.8,36,219.89 with interest at 11.50% per annum. That the defendants defaulted in repaying the agreed installments regularly. Due to continuous default in payment of loan amount 7 O.S.No.489 /2016 by the defendant, their loan account classified as NPA on 2.5.2014 in accordance with the directions issued by the RBI.
That the plaintiff Bank on 17.11.2014 issued legal notice to the defendants to pay the amount due. The said legal notice returned back with endorsement "door locked". That as on date of filing of the suit, Rs.9,35,790/- is due and outstanding from the defendant. Since the defendants have not paid the said amount according the plaintiff, the plaintiff has been constrained to file suit for recovery of money.
9. In order to prove the case of the plaintiff Bank got examined its Senior Branch Manager Smt.Elizebeth.C, as Pw.1. Pw.1 in her chief-examination has reiterated the averments made in the plaint.
Through, Pw.1 the documents produced by the plaintiff Bank has been marked as Exs.P.1 to Ex.P.11, which are as follows:
Ex.P.1 Application for advance
Ex.P.2 Process note
Ex.P.3 Composite hypothecation agreement dt.25.3.2012
Ex.P.4 Consideration receipt dated 23.5.2012
8 O.S.No.489 /2016
Ex.P.5 Guarantee agreement dated 23.5.2012 executed by
2nd defendant
Ex.P.6 Letter of acknowledgment of debt dated 23.7.2015
Ex.P.7 Demand promissory note dated 23.7.2015
Ex.P.8 Office copy of legal notice dated 17.11.2014
Exs.9,10 Two returned postal envelops
Ex.P.11 Statement of loan account
10. Ex.P.1 the loan application which consists of
photographs of the defendant and his signature shows that the 1st defendant applied for the loan on 3.4.2012 and Process Note dated 22.5.2012 as Ex.P.2 shows thatRs.10 lakhs was sanctioned by the plaintiff Bank to the 1st defendant. Ex.P.3 establishes that, 1st defendant has executed Composite Hypothecation Agreement in favour of plaintiff Bank by agreeing to repay loan of Rs.10 lakhs in 60 monthly installments of Rs.41,522/- with interest at 11.75% per annum compounded monthly rests. Ex.P.4 Consideration Receipt dated 23.5.2012 shows that Rs.10 lakhs received by the 1st defendant and Ex.P.5 indicates that 2nd defendant stood as guarantor for the said loan by agreeing the terms and conditions of Ex.P.5.
9 O.S.No.489 /2016
11. Ex.P.6 the letter of Acknowledgement of debt dated 23.7.2015 shows that 1st defendant has confirmed and admitted balance outstanding of Rs.8,36,219.89 together with interest on it from 1.3.2015 and Ex.P.7 demand promissory note shows that the 1st defendant executed the D.P.Note by promising to pay said sum of Rs.8,36,219.89 with interest at 11.50% per annum. Ex.P.11 statement of loan account reveals as on the date of filing of suit, sum of Rs.9,35,790/- is outstanding and due from the defendants.
12. In this case, since the defendant has not appeared inspite of service of summons by paper publication, the defendants were placed ex-parte by this Court on 19.8.2016. Since the defendants have failed to appear in this suit, the plaint averments, evidence of Pw.1 and documents Exs.P.1 to Ex.P.11 remains un-challenged and un-rebutted. There is no ground or reason to disbelieve the plaint averments or evidence of Pw.1 or Exs.P.1 to Ex.P.7. Considering the same, this Court is of considered view that, the plaintiff Bank is entitled for recovery of 10 O.S.No.489 /2016 Rs.9,35,790/- from the defendants. Hence, point No.1 is answered in the Affirmative.
13.POINT No.2 : In view of the above discussions and findings on point No.1, I proceed to pass the following:-
ORDER The suit filed by the plaintiff is hereby decreed with cost.
The defendants are jointly and severally liable to pay Rs.9,35,790/- (Nine Lakhs Thirty Five Thousand Seven Hundred and Ninety rupees only) to the plaintiff Bank with interest at 11.75% per annum from the date of suit till realization of the entire amount.
Draw decree accordingly.
(Dictated to the Judgment Writer, script the same, typed by her and then corrected and pronounced by me in open court on this the 23rd day of November, 2016) (Parameshwara Prasanna.B) LXII Addl.City Civil & Sessions Judge, (CCH-63) Bengaluru 11 O.S.No.489 /2016 ANNEXURE WITNESSES EXAMINED FOR THE PLAINTIFF:
Pw.1 Smt.Elizebth.C WITNESSES EXAMINED FOR THE DEFENDANT:
-NIL-
DOCUMENTS MARKED FOR THE PLAINTIFF:
Ex.P.1 Application for Advance
Ex.P.2 Process Note
Ex.P.3 Composite Hypothecation Agreement
dt.25.3.2012
Ex.P.4 Consideration receipt dated 23.5.2012
Ex.P.5 Guarantee Agreement dated 23.5.2012
executed by 2nd defendant
Ex.P.6 Letter of acknowledgment of debt dated
23.7.2015
Ex.P.7 Demand promissory note dated 23.7.2015
Ex.P.8 Office copy of legal notice dated
17.11.2014
Exs.P.9, 10 Two returned postal envelops
Ex.P.11 Statement of loan account
DOCUMENTS MARKED FOR THE DEFENDANT:
NIL
(Parameshwara Prasanna.B)
LXII ADDL.CITY CIVIL & SESSIONS JUDGE, BENGALURU CITY.12 O.S.No.489 /2016