Bangalore District Court
Vijaya Bank vs M/S Smita Academic Publications on 18 December, 2015
IN THE COURT OF THE LXVIII ADDITIONAL CITY CIVIL
AND SESSIONS JUDGE, BENGALURU CITY (CCH-69)
Dated this the 18th day of December 2015
PRESENT:
Sri.Shivaji Anant Nalawade, B.Com., LL.B.(Spl)
LXVIII Addl. City Civil and Sessions Judge,
Bengaluru City.
ORIGINAL SUIT No. 6494/2015
PLAINTIFF : Vijaya Bank,
Trinity Circle Branch,
41/2, M.G.Road,
Bengaluru - 560 001.
Represented by its Asst. General
Manager:
Mrs.T.M.Mini
W/o A.S.Rajeev,
Aged about 44 years,
(By Sri.V.Raghunathan, Advocate)
- Versus -
DEFENDANTS : 1. M/s Smita Academic Publications,
Proprietress: Mrs. Hema
Sudhakaran, Aged about 52
years, No.25, Yerriswamy Nilaya,
10th Main, 13th Cross,
Maruthinagar, New Thippasandra,
Bengaluru - 560 075.
2 O.S.No.6494/2015
2. S.N. Rama Prasad
S/o Late. S.V. Narayanaswamy
Rao, Aged about 58 years,
Senior Manager Welding,
No.9323-9053064, HAL Aerospace
Division, Bengaluru - 560 075.
3. K. Sudhakaran
S/o Late. Kumara Kurup,
Adult, No.25, Yerriswamy Nilaya,
10th Main, 13th Cross,
Maruthinagar, New Thippasandra,
Bengaluru - 560 075.
(Exparte)
Date of Institution 24-07-2015
Nature of suit Money Suit
Date of commencement 11-12-2015
of evidence
Date on which judgment 18-12-2015
was pronounced
Total Duration Years Months Days
-- 04 25
(SHIVAJI ANANT NALAWADE)
LXVIII Addl. City Civil and Sessions
Judge, Bengaluru City.
JUDGMENT
This is the suit filed by the plaintiff-Bank against the defendants for recovery of money.
3 O.S.No.6494/2015
2. The brief facts of the plaintiff's case are as follows:
It is the case of the plaintiff-Bank that, defendant No.1 has approached the Bank for securing loan for the purpose of Computer Accessories, Computer Table, etc., and plaintiff-Bank has sanctioned loan of Rs.1,00,000/- to the defendant No.1 and communicated the same to the defendant by letter of communication dated 16-12-2002. It is the case of plaintiff-Bank that defendant No.1 has executed necessary documents in favour of the plaintiff- Bank. It is the case of plaintiff-Bank that defendant No.2 and 3 are the guarantors of the loan availed by defendant No.1 and they have executed letter of Continuing Guarantee in favour of the plaintiff-Bank. It is the case of plaintiff-Bank that, defendant No.1 has agreed to repay the loan with interest @ 16% p.a. Defendant No.1 has also executed and delivered the Acknowledgment of Liability dated 17-10-2005, 16-08-2008, 16-07-2011 and 17-04- 2013 in favour of the Bank. It is the case of plaintiff-Bank that, defendants have not repaid the loan as agreed. The plaintiff-Bank has requested the defendants to repay the 4 O.S.No.6494/2015 loan on several occasions as agreed but defendants have not repaid the same. Defendants are in due of Rs.7,26,901-20 to the Bank as on the date of filing of this suit and prayed for decreeing the suit.
3. Defendants in spite of service of summons remained absent, hence placed exparte and posted the case for exparte evidence.
4. Plaintiff-Bank in order to prove its case examined the Assistant Manager of the Bank as PW.1. Plaintiff-Bank in support of its case produced 18 documents and got them marked as Ex.P1 to 18 and closed its side.
5. Heard the arguments advanced by the learned counsel for the plaintiff-Bank.
6. The points that arise for my determination are as under:
1. Whether the plaintiff-Bank proves that defendant No.1 has availed secured loan of Rs.1,00,000/- from the plaintiff-Bank on 16-
12-2002 and agreed to repay the said loan with interest @ 16% per annum?
2. Whether the plaintiff-Bank proves that defendant No.2 and 3 have stood as 5 O.S.No.6494/2015 guarantors for the loan availed by defendant No.1 and defendant No.2 and 3 have executed a letter of continuing guarantee in favour of the plaintiff-Bank?
3. Whether the plaintiff-Bank is entitled for future interest as prayed for?
4. What Order/Decree?
7. After hearing the arguments and perusal of documents placed before me, my findings to the above points are as follows:
Point No.1 : In the Affirmative;
Point No.2 : In the Affirmative;
Point No.3 : Partly Affirmative and
Partly Negative;
Point No.4 : As per final order
for the following;
REASONS
8. POINT No.1 & 2: The above points are
inter-connected, hence they are taken up for discussion together in order to avoid repetition.
9. It is case of the plaintiff-Bank that defendant No.1 has availed secured loan for the purchase of Computer Accessories, Computer Table and it has 6 O.S.No.6494/2015 sanctioned the loan on 16-12-2002. Defendant No.1 has agreed to repay the said loan with interest @ 16% per annum. Defendant No.2 and 3 are the guarantors of the loan availed by defendant No.1 and they have executed a Letter of Continuing Guarantee in favour of the plaintiff- Bank. Defendants have agreed to repay the loan in 36 equatted monthly installments. Defendant No.1 as agreed, has not paid the loan. Defendants were in due of Rs.7,26,901-20. Defendants exparte, so the plaint averments remained unchallenged.
10. Plaintiff-Bank in order to prove its case, examined its Assistant Manager as PW.1. PW.1 has reiterated the averments of the plaint in his examination- in-chief. PW.1 has clearly stated that defendant No.1 has availed loan of Rs.1,00,000/- from the Bank on 16-12-2002 and agreed to repay the same with interest @ 16% per annum in 36 equated monthly installments. Defendant No.2 and 3 stood as guarantee to defendant No.1 and they have executed Letter of Continuing Guarantee in favour of the Bank. Defendants were in due of Rs.7,26,901-20 as on the date of filing of this suit. Defendants have not repaid 7 O.S.No.6494/2015 the loan in spite of repeated requests. The defendants exparte and so the evidence of PW.1 remained unchallenged and unrebutted.
11. Plaintiff-Bank in order to prove its case, produced Loan Sanction Communication Letter dated 16- 12-2002 which is at Ex.P1. Ex.P1 discloses that plaintiff- Bank has advanced loan of Rs.1,00,000/- to the defendant No.1 and defendant No.1 has agreed to repay the same with interest @ 16% per annum. Plaintiff-Bank has produced On Demand Promissory Note executed by defendant No.1 dated 17-12-2002 which is at Ex.P2 and Ex.P2 discloses that defendant No.1 has agreed to repay the loan of Rs.1,00,000/- on demand to the plaintiff-Bank. Plaintiff- Bank has produced letter of repayment given by the defendant to the Bank which is at Ex.P3 and Ex.P3 discloses that defendants have agreed to repay the loan with interest @ 16% per annum in 36 equatted monthly installments of Rs.3,520/- per month commencing from January-2003. Plaintiff-Bank has produced Articles of Agreement executed by defendant No.1 which is at Ex.P4. Plaintiff-Bank has produced Hypothecation Agreement 8 O.S.No.6494/2015 executed by defendant No.1 in favour of the Bank which is at Ex.P5. Ex.P5 discloses that defendant No.1 has hypothecated the Computer Accessories, Computer Table etc., in favour of the plaintiff-Bank. Plaintiff-Bank has produced Letter of Guarantee executed by defendant No.2 in favour of the plaintiff-Bank dated 17-12-2002 which is at Ex.P6. Ex.P6 discloses that defendant No.2 stood as guarantee to the defendant No.1 and executed letter of continuing guarantee executed by defendant No.3 in favour of the plaintiff-Bank dated 17-12-2002 which is at Ex.P7. Ex.P7 discloses that defendant No.3 has stood guarantee to the defendant No.1 for the loan availed by him from the Bank and executed letter of Continuing Guarantee in favour of the plaintiff-Bank. Plaintiff-Bank has produced Acknowledgment of Debt given by defendant No.1 dated 17- 10-2005 which is at Ex.P8. Plaintiff-Bank has produced Acknowledgment of Debt given by defendant No.1 dated 16- 08-2008 which is at Ex.P9. Plaintiff-Bank has produced Acknowledgment of Debt given by defendant No.1 dated 16- 07-2011 which is at Ex.P10. Plaintiff-Bank has produced Acknowledgment of Debt given by defendant No.1 dated 17- 9 O.S.No.6494/2015 04-2013 which is at Ex.P11. Ex.P8 to 11 discloses that defendant has executed the said Acknowledgement of Debt and acknowledged the Debt of the Bank. Plaintiff-Bank has produced office copy of the Legal Notice issued by it dated 08-04-2004 to the defendant which is at Ex.P12. Plaintiff-Bank has produced office copy of legal notice issued to the defendant dated 04-07-2015 which is at Ex.P13 and Ex.P12 and 13 discloses that plaintiff-Bank has issued legal Notice to the defendants as per Ex.P12, 13 and called upon them to repay the loan amount. Plaintiff has produced the Postal Receipts for issue of legal Notice to the defendants and they are at Ex.P14 and 15. Plaintiff has produced Postal Articles sent to the defendant No.1 which is returned as unclaimed which is at Ex.P16. Plaintiff-Bank has produced the Postal Acknowledgment for service of notice to defendant No.2 which is at Ex.P17 and Ex.P17 discloses that Notice issued to defendant No.2 is duly served. Plaintiff-Bank has produced Certified copy of loan ledger account of defendants which is at Ex.P18 and Ex.P18 discloses that as on the date of filing of this suit defendants were in due of Rs.7,26,901-20. The evidence of 10 O.S.No.6494/2015 PW.1 and Ex.P1 to 18 remained unchallenged and unrebutted. The evidence of PW.1 and Ex.P1 to 18 discloses that, defendant No.1 has availed loan of Rs.1,00,000/- from the plaintiff-Bank on 16-12-2002 and agreed to repay the said loan with interest @ 16% per annum in 36 equated monthly installments of Rs.3,520/- each. Defendant No.2 and 3 stood as guarantors to defendant No.1 for the loan availed by him from the Bank. Further the evidence of PW.1 and Ex.P1 to 18-documents, clearly goes to show that defendants were in due of Rs.7,26,901-20 as on the date of filing of this suit. Hence, I answer point No.1 and 2 in the AFFIRMATIVE.
12. POINT NO.3: Plaintiff-Bank has sought future interest @ 18%. The agreed rate of interest is at 16% p.a. The present loan is not an agricultural loan, so the plaintiff-Bank is entitled for future interest at the agreed rate. The agreed rate of interest in this case is 16% p.a., so the plaintiff-Bank is not entitled for future interest @ 18% p.a. Hence, I answer point No.3 PARTLY IN THE AFFIRMATIVE and PARTLY IN THE NEGATIVE. 11 O.S.No.6494/2015
13. POINT No.4: In view of my findings on point Nos.1 to 3 and reasons stated therein, I proceed to pass the following:
ORDER The suit of the plaintiff-Bank is partly decreed with cost.
The plaintiff-Bank is entitled to recover the suit claim of Rs.7,26,901-20 from defendants.
Plaintiff-Bank is entitled for pendentilite and future interest on the suit claim @ 16% p.a., from the date of filing of the suit till realization of entire amount.
Draw decree accordingly.
(Dictated to the Judgment Writer, transcribed by her, corrected, signed and then pronounced by me in the open court on this the 18th day of December 2015).
(SHIVAJI ANANT NALAWADE) LXVIII Addl. City Civil and Sessions Judge, Bengaluru City.
ANNEXURE WITNESSES EXAMINED IN FAVOUR OF THE PLAINTIFF:
PW.1 A.R.Mahesh 11-12-2012 12 O.S.No.6494/2015 DOCUMENTS MARKED IN FAVOUR OF THE PLAINTIFF:
Ex.P1 Loan Sanction
Communication letter dated
16-12-2002
Ex.P2 Demand Promissory Note
Ex.P3 Letter of Repayment
Ex.P4 Articles of Agreement
Ex.P5 Hypothecation Agreement
Ex.P6 Letter of guarantee by D-2
Ex.P7 Letter of guarantee by D-3
Ex.P8 Acknowledgment of Debt
Ex.P9 to 11 3 Acknowledgement of Debts Ex.P12 Office copy of legal Notice Ex.P13 Office copy of legal Notice Ex.P14, 15 Postal Receipts Ex.P16 Postal Articles Ex.P17 Postal acknowledgment Ex.P18 Loan Ledger extract WITNESSES EXAMINED IN FAVOUR OF THE DEFENDANT:
-- NIL --
DOCUMENTS MARKED IN FAVOUR OF THE DEFENDANT:
-- NIL --
(SHIVAJI ANANT NALAWADE) LXVIII Addl. City Civil and Sessions Judge, Bengaluru City.