Bangalore District Court
Bank Of India vs Sri.G.C.Purushotham Raj Urs on 11 February, 2015
IN THE COURT OF THE XII ADDL. CITY CIVIL AND SESSIONS
JUDGE AT BANGALORE
PRESENT: SRI.BHAIRAPPA SHIVALING NAIK
B.Com.,LL.B.(Spl),
XII ADDL.CITY CIVIL & SESSIONS JUDGE
(CCH.No.27), BANGALORE
DATED THIS THE 19TH DAY OF SEPTEMBER 2014
O.S.No.2971/2012
PLAINTIFF:- BANK OF INDIA
A body corporate constituted
under Banking Companies
(Acquisition and Transfer of
Undertakings) Act, 1970
Head Office: Star House, C-5,
G-Block, Bandra Kurla Complex,
Bandra (East), Mumbai-400051.
Branch among other places at:
No.313/313A, Dr.Siddaiah
Puranik Road, 3rd stage,
3rd block, Basaveshwaranagar
Bangalore -560079.
Represented by its
Constituted attorney
Sri.P.Augustine
(By Sri.N.G.Sreedhar, Advocate)
2
O.S.No.2971/2012
-VS-
DEFENDANTS:- 1. Sri.G.C.Purushotham Raj Urs
Aged about 35 years,
s/o.Sri.G.D.Chandrashekara
Raj Urs, proprietor of
M/s.Sri.Manjunatha Offset
Printers, Having office at
No.20, 2nd cross,
West of Chord Road,
Shivanagar, Rajajinagar,
Bangalore -560010.
Residing at No.17, 2nd Main,
Kalyan nagar,
Nagarabhavi Road,
Bangalore -560072.
And also at:
Sri.G.C.Purushotham Raj Urs,
M/s.Sri.Manjunatha Offset
Printers, No.60/1, 'Agrahara
Dasarahalli', Magadi Road,
Near Jaimuni Rao Circle,
Bangalore 560079.
Also At:
Sri.G.C.Purushotham Raj Urs,
c/o. New Maruthi
Enterprises in front of
Mayura Hotel, M.G.Road
Chikkamangalur.
2. Sri.G.C.Shekar Raj,
3
O.S.No.2971/2012
Aged about 62 years,
s/o. Sri.P.Channaraj urs,
residing at No.17,
2nd Main, Kalyan Nagar,
Nagarabhavi Road,
Bangalore -560072.
(Deft.No.1:Exparte
Deft
No.2:Sri.B.N.Adinarayana-Advoca
te)
Date of Institution of the suit : 19.04.2012
Nature of the suit : Recovery of Money
Date of commencement of
recording of the evidence : 20.01.2014
Date on which the Judgment was
pronounced : 19.09.2014
Total Duration Years Months Days
: 02 05 00
(BHAIRAPPA SHIVALING NAIK )
XII Addl. City Civil & Sessions Judge,
Bangalore
4
O.S.No.2971/2012
J U D G E M E N T
This is filed by the plaintiff for recovery of money against the defendants.
2. The case of the plaintiff is that on 27.9.2006, both the defendants approached the plaintiff requesting for Term Loan of Rs.7,00,000/- for acquiring machineries and cash credit facility loan of Rs.1,25,000/-. The plaintiff has sanctioned both loans to the 1st defendant under consideration of which the 1st defendant as a party and as guarantor have agreed to repay the same jointly and severally each along with interest at the rate of 14.25% p.a. and 14% p.a. respectively. The 2nd defendant apart from standing as guarantor for securing the due repayment of the loans, he has created equitable mortgage by deposit of title deeds and documents pertaining to the immovable property bearing a s s e s s m e n t No.20/420/207/178/4197/204/176/1204/204/176/1,176/2, situated at Gavanahalli extension of Chikkamagalur City in 5 O.S.No.2971/2012 favour of the plaintiff Bank so as to secure the due repayment of aforesaid loans as described in the schedule annexed to the plaint. The term loan has been duly disbursed by the plaintiff to the 1st defendant under loan A/c.No.84927041000012 and the Cash Credit loan A/c.No.849230110000008 and thus having availed the loan the defendants have failed to regularly repay the instalments and the defendants have become chronic defaulters. The defendants have executed Demand Promissory Note and other documents. The 2nd defendant ha executed Deed of Guarantee. The plaintiff Bank has maintained both the loan accounts of the 1st defendant in its ordinary and usual course of practice. After reckoning the repayments made by the defendant No.1 upto 24.08.2010, the defendants are jointly and severally liable to pay a sum of Rs.8,55,290.57ps. and Rs.1,11,894.82ps. towards Term loan and Cash Credit loan respectively including interest at the agreed rate upto the date of suit. Due to default on the part of the defendants, the plaintiff Bank has constrained to file the suit to recover the said sum with future interest at the rate of 14% and 14.25% p.a. respectively along with costs of the suit and also prayed for attachment and sale of the schedule property by 6 O.S.No.2971/2012 public auction so as to recover the same from the proceeds thereof.
3. Inspite of repeated issue of suit summons and due publication of citation in the daily newspaper, defendant No.1 remained absent and he has been placed exparte. Defendant No.2 has appeared through his learned counsel and resisted the claim of the plaintiff Bank by filing his written statement. Defendant No.2 has denied each and every allegations made in the plaint as false. In turn, it is submitted that the 2nd defendant has not approached the plaintiff Bank and requested for Term loan of Rs.7,00,000/- and Cash Credit Loan of Rs.1,25,000/- for the 1st defendant. The 2nd defendant has not agreed as a guarantor to the alleged loan. The 2nd defendant has denied that he has created Equitable mortgage by deposit of title deeds and documents of the immovable property as described in the schedule. The 2nd defendant has shown his ignorance about the fact that the plaintiff Bank has disbursed Cash credit loan in favour of the 1st defendant and the 1st defendant executed the documents as alleged in the plaint. It is also 7 O.S.No.2971/2012 denied the 2nd defendant has stood as guarantor and repayment of the said alleged loans in favour of the plaintiff Bank by executing Deed of guarantee on 27.9.2006 itself. The 2nd defendant has no knowledge in respect of the alleged loan sanctioned in favour of the 1st defendant upto 24.8.2010. Further the defendant is liable to pay a sum of Rs.9,6,185.39ps. as alleged in the plaint along with interest.
4. The 2nd defendant has stoutly denied that the plaintiff Bank caused issue of a notice u/s.13(2) of SARFAESI Act dated.18.12.2010 and 15.3.2012.and other averments made in the plaint. It is also denied that the property bearing land and building shed and structures standing in the Assessment No.20/420/207/178/4197/204/176/1204/204/176/1,176/2, situtate at Gavanahalli extension, Chikkamagalur City measuring East to West: 40 ft. and North to South: 25 ft. mortgage to secure both the loan accounts as common security.
5. The 2nd defendant has submitted that there is no cause of action to file the suit against the 2nd defendant. 8
O.S.No.2971/2012 Suit of the plaintiff is barred by limitation. The schedule property is not within the jurisdiction of this court. The 2nd defendant came to know from the 1st defendant he approached the plaintiff bank for the purpose of installation of offset printing press in the name and style of Sri.Manjunath offset Printers situated at No.60/1, Agrahara Dasarahalli, Magadi Road, near Jai Muni Rao Circle, Bangalore by hypothecating the plant and machineries. The plaintiff Bank agreed and sanctioned the term loan of a sum of Rs.7,00,000/- but the plaintiff bank unable to sanction more than Rs.7,00,000/-. At that point of time the 1st defendant requested the plaintiff bank for sanction of Rs.1,25,000/- in favour of him, the plaintiff and the 1st defendant had requested the 2nd defendant to a guarantor in respect of the cash credit loan of Rs.1,25,000/- only. At that junction, the 2nd defendant has agreed a guarantor to the said Cash credit loan of Rs.1,25,000/- and he and given the documents in respect of the schedule properties. The 2nd defendant is not at all a guarantor to the term loan of Rs.7,00,000/-. There is no common security for the repayment of both the loans. Besides, the property mentioned in the schedule is the 9 O.S.No.2971/2012 ancestral property of defendant No.2. he has no independent and absolute right over the said property. The defendant No.2 his son and daughter already filed suit in O.S.No.327/2011 for partition against the 2nd defendant before the Principal Civil Judge, Jr. Dn. And J.M.F.C. Chikkamagalur and same is pending. Further the sisters of 2nd defendant have also filed a suit for partition in respect of the same property along with other properties in O.S.No.381/2012 before the said court at Chikkamagalur against the defendant No.2 and his brothers. The 2nd defendant has approached the plaintiff Bank several times and requested to take recovery proceedings against the 1st defendant, but the plaintiff Bank officials are colluding with the 1st defendant with malafide intention and gain and plaintiff not at all taken any action to recover the dues if any from the 1st defendant. The 1st defendant is very much available and plant and machineries are in his possession and custody and he had properties. The 1st defendant is capable to repay the loans dues if any. The plaintiff Bank without any steps to recover the dues, filed the suit against this defendant with malafide intention and giving unnecessary 10 O.S.No.2971/2012 harassments. Therefore, it is prayed to dismiss the suit with costs.
6. On the basis of the above pleadings, the following Issues are framed:-
ISSUES
1. Whether the plaintiff proves that the term loan of Rs.7,00,000/- and Cash Credit Loan of Rs.1,25,000/- was advanced to the 1st defendant on 27.09.2006?
2. Whether the plaintiff proves that the defendant No.2 has executed Deed of Guarantee dt.27.09.2006 guaranteeing the due repayment of the said loans along with agreed rate of interest?
3. Whether the defendants are jointly and severally liable to pay sum of Rs.8,55,290.57/- with future interest thereon at the rate of 14% per annum in respect of term loan to the plaintiff?
4. Whether the defendants are further jointly and severally liable to pay sum of Rs.1,11,894.82/- with future interest at the rate of 14.25% per annum in respect of Cash Credit Loan to the plaintiff?11
O.S.No.2971/2012
5. Whether the defendant No.2 proves that he has agreed as a guarantor only in respect of Cash credit loan of Rs.1,25,000/- advanced to the 1st defendant?
6. What Order or Decree?
7. The plaintiff got examined its Chief Manager as P.W.1 and adduced documentary evidence from Ex.P1 to Ex.P35. Meanwhile, the 2nd defendant was examined as D.W.1 but not adduced any documentary evidence. Whereas the counsel for the defendant has got marked balance sheet as Ex.D1.
8. I have heard the counsel for both the parties. Perused the material placed on record.
9. My finding on the above Issues are :-
Issue No.1: In the Affirmative Issue No.2: In the Affirmative Issue No.3: In the Affirmative Issue No.4: In the Affirmative Issue No.5: In the Negative Issue No.6: As per final order 12 O.S.No.2971/2012 for the following :-
R E A S O N S
10.Issue Nos.1 to 5 :- As these issues are being inter related to each other, the evidence is to be appreciated in common and to avoid repetition, they are taken up together.
11. P.W.1 the Chief Manager of the plaintiff Bank has deposed based on the documents executed by the defendants and the loan account maintained in the daily course of business of the plaintiff. It is evident from the cross-examination of P.W.1 that the plaintiff Bank has sanctioned two loans in the year 2006-07. P.W.1 has personal knowledge of sanction of instant loans under Small Scale Industries Scheme. The plaintiff Bank sanctioned Rs.7,00,000/- for purchasing machinery and Rs.1,25,000/- for purchase of stocks. The 2nd defendant has not executed Demand Promissory Note. The plaintiff Bank has not taken any other action against the defendants except filing the suit. The plaintiff Bank is empowered to seize the hypothecated plaint and machinery and the stock and auction the same for recovery of amount due in case of default on 13 O.S.No.2971/2012 the part of borrowers. As deposed by P.W.1, the hypothecated plant and machinery and stock was under lock and key and the plaintiff Bank was unable to seize those goods. P.W.1 is certain about the fact that the schedule property situated at Chikkamagalur belonging to 2nd defendant and the family members of 2nd defendant files suit among themselves in the court of Chikkamagalur and the plaintiff Bank was defendant in that suit. The 2nd defendant has pleaded regarding the suit pending before the Chikkamagalur court in this suit. It is admitted that everything is typed in Ex.P22 except the date. The balance sheet at Ex.P1 is prepared by the staff of the plaintiff and it bears the signature of Credit Manager. P.W.1 has not produced the Profit and Loss and Audited statement of Accounts to show the actual amount claimed in the suit. However P.W.1 has shown his readiness to produce final balance sheet and the balance sheet reflecting the final entry. It is a fact that the plaintiff Bank has not pleaded about this suit in the suit pending before the Chikkamagalur court.
14
O.S.No.2971/2012
12. D.W.1 has reiterated the averments made in the written statement in the course of his examination-in-chief. On the contrary, it is evident from the cross-examination of D.W.1 that, he is holding the account in plaintiff Bank for the last seven years. The 1st defendant is the son of his elder brother. They are four brothers and a sister. Admittedly, the partition had taken place through the registered Partition Deed among all his brothers as per Ex.P19. However D.W.1 has denied that Ex.P19 bears signature of his sister Janakamma w/o. Mallaraja Urs. There are four properties allotted towards his share under the said Partition. The property mortgaged in favour of plaintiff Bank is one of the properties allotted to him. The son and daughter of 2nd defendant have filed suit for partition against him in the court of Chikkamagaluru in respect of the suit schedule mortgaged property only as he has already sold out other properties. The vendees of the properties are not made as parties to the suit filed by his children. D.W.1 has not given evidence before the court in that suit. The said sister of the 2nd defendant has filed another suit in respect of all the four items allotted to him during partition and another property against all the four brothers about 3 years back. 15
O.S.No.2971/2012 The 2nd defendant has not disclosed the fact of mortgage and instant suit filed by plaintiff against him in the suits filed by his children and his sister. Though the defendant No.2 has denied the loan transactions and execution of various documents in favour of the plaintiff Bank for having availed loan for 1st defendant, yet D.W.1 has admitted not only his signature and photo appearing, but also profile of borrower and guarantor at Ex.P3 and Ex.P4. It is also admitted that the particulars mentioned in Ex.P3 are in his own handwriting. D.W.1 does not remember whether he had introduced the 1st defendant to the plaintiff Bank while opening his account in his name but he accompanied 1st defendant to the bank.
13. D.W.1 has clearly and unequivocally admitted the material facts in the course of his cross-examination. It is established that the 1st defendant borrowed Cash Credit facility and Term Loan from the plaintiff Bank and he stood as guarantor for both the loans availed by the 1st defendant. Ex.P18 to Ex.P21 are the documents pertaining to the schedule property and he has deposited those documents before the plaintiff Bank. D.W.1 has furnished those 16 O.S.No.2971/2012 documents as security for repayment of the loan availed from the plaintiff Bank. The Memorandum Evidencing Creation of Equitable Mortgage at Ex.P22 bears his signature got marked on confrontation as Ex.P22(a).
14. On scrutinizing the documents and evidence n record, it is crystal clear that defendant No.2 has merely denied that he stood as guarantor for both the loans sanctioned by the plaintiff in favour of the 1st defendant particularly, the Term loan of Rs.7 lakhs and admitted that he stood as guarantor for the loan of Rs.1,25,000/- sanctioned to the 1st defendant as a cash credit loan. In view of admission of D.W.1 in the course of his cross-examination, the defence so set up by him has been falsified by the plaintiff. It is proved from the documentary evidence on record that it is the 2nd defendant who had introduced the 1st defendant as the son of his elder brother to the Officers of the plaintiff Bank and also furnished borrower's as well as guarantor's profile towards both the loans as it is evident from Ex.P1 to Ex.P4. The 2nd defendant has duly executed Deed of Guarantee separately as per Ex.P14 and Ex.P15 for having stood as guarantor for both 17 O.S.No.2971/2012 loans sanctioned by the plaintiff to the 1st defendant. The 2nd defendant apart from executing the Deed of guarantee, has executed Memorandum of Evidencing Creation of Equitable Mortgage dt.27.09.2006 as per Ex.P22 in favour of the plaintiff for extension of mortgage by deposit of title deeds for the Cash credit loan of Rs.1,25,000/-. This fact itself goes to show that the 2nd defendant has been stood as guarantor not only for the earlier Term loan of Rs.7 Lakhs but also subsequent Credit facility extended to the 1st defendant as proprietor of Sri.Manjunath Offset Printers. The 2nd defendant has deposited the original Sale Deed pertaining to the schedule property under his ownership executed in his favour by the erstwhile owner as it is evident from Ex.P18. It is also an admitted fact that there was a partition taken place among the 2nd defendant, his brothers and sisters as per Ex.P19 on 29.11.1999 and the schedule property and other properties were allotted to the share of 2nd defendant. The 2nd defendant has perfected his right, title and interest over the suit schedule property as per Revenue records.
18
O.S.No.2971/2012
15. On the other hand, the plaintiff got issued notice under Sec.13(2) of SARFAESI ACT 2002 ON 21.9.2011 to both the defendants to the addresses as mentioned in the notice as per Ex.P23 and Ex.P24. The said notices have not been acknowledged by either of the defendants but one Amuda received those notices through post as it is evident from the postal acknowledgment Ex.P25 and Ex.P26. It is also an admitted fact that the plaintiff Bank has not at all taken any other action to recover the amount from the 1st defendant either by seizure and sale of plant and machinery and other properties held by the 1st defendant for the reasons as deposed by P.W.1 in the course of his cross-examination. The plaintiff due to default on the part of the defendants got issued legal notice as per Ex.P27 to both the defendants through RPAD. Whereas the registered postal covers at Ex.P31 to Ex.P33 go to show that the 1st defendant along with the address and the name of the 2nd defendant at the address as shown therein was not found. As such, the plaintiff was unable to serve the demand notice. Even then, both the defendants were/are aware about the loan transaction and default committed by them. The Statement of Accounts pertaining to both the loan transactions at Ex.P34 and Ex.P35 go to show that a sum of Rs.8,55,290.57ps. including interest upto the date of filing of the suit was due from the defendants towards Term Loan account and Rs.1,11,894.82ps. was due from the defendants towards the Cash Credit Loan account. As such, the defendants were bound to repay Rs.9,67,185.39ps. as on the date of suit along with future interest at the agreed rate. It is pertinent to note here that Ex.P5 On Demand Promissory Note reflects the signature of the proprietary concern of 1st defendant dated.27.9.2006 but it does not bear the name of the executant. Even the Hypothecation -cum- Agreement at Ex.P6 and Ex.P7 does not bear the name of the either 1st defendant or 2nd defendant. But it is mentioned that borrower as M/s.Manjunatha Offset Printers. Besides, none of the Hypothecation -cum-Loan Agreement gives description of plant and machinery hypothecated under those Agreement as security towards repayment oft eh loan. Looking to the approach of the 2nd defendant towards this proceedings as well as separate suits filed by his children and his sister against him only in respect of suit schedule property without claiming their legitimate share over the properties allotted to the 2nd defendant through registered Partition 19 O.S.No.2971/2012 Deed in the year 1989, even the subsequent purchasers of other properties allotted to the 2nd defendant were also not made as parties to both the partition suits. The children of the 2nd defendant were filed suit in O.S.No.327/2011 and made plaintiff Bank herein as one of the defendants. The sister of defendant No.2 has filed suit in O.S.No.381/2012 not only against the defendant No.2 herein, but also her other brothers. The 2nd defendant has merely pleaded in his written statement that the suit schedule properties are the ancestral property acquired by him through partition and he has no independent right to mortgage the same in favour of the plaintiff. Though the 2nd defendant has produced certified copy of Judgment & Decree passed on O.S.No.327/2011 on 13.11.2013 and some other records, yet for the reasons best known to him, omitted to exhibit the same so as to form part of evidence in support of his defence. It is a fit case to draw an adverse inference against the defendant No.2 in this regard. The 2nd defendant has made efforts to over come his liability towards the term loan and tactfully admitted his guarantee-ship only in respect of the Cash credit facility subsequent extended to the 1st defendant. As noted supra, when D.W.1 has duly admitted the actual facts in controversy between the parties, then the 2nd defendant is restored from denying the joint and several liability to pay the amount claimed by the plaintiff Bank towards the Term loan as well as the Cash Credit facility. Hence without much discussion, I hold that defendants are jointly and severally liable to pay a sum of Rs.8,55,290.57ps. rounded off to Rs.8,55,291/- with future interest thereon @ 14% p.a. in respect of Term Loan and a sum of Rs.1,11,894.82ps. rounded off to Rs.1,11,895/- with future interest thereon @ 14.25% p.a. in respect of Cash Credit Loan to the plaintiff. When the defendant No.2 has failed to prove through atleast probable evidence that he has agreed as guarantor in respect of the Cash Credit facility of Rs.1,25,000/- advanced to the 1st defendant and duly admitted the material facts in controversy that the 1st defendant borrowed cash Credit facility and Term loan from the plaintiff Bank and 2nd defendant stood as guarantor for both the loans availed by the 1st defendant by depositing the documents of title deeds at Ex.P18 to Ex.P21 and depositing before plaintiff Bank as security for repayment of both the loans and then the defendant 20 O.S.No.2971/2012 cannot deny the claim of the plaintiff made against him. Hence without much discussion, I answer Issue Nos.1 to 4 in the Affirmative and IN THE COURT OF THE XII ADDL. CITY CIVIL AND SESSIONS JUDGE (CCH.No.27), AT BANGALORE.
PRESENT:SRI.BHAIRAPPA SHIVALING NAIK, B.Com.,LL.B.(Spl), XII Addl.City Civil & Sessions Judge, Bangalore.
Dated: This the 28th Day of July 2014 O.S.No.7330/2013 Plaintiff: BANK OF INDIA White field branch Sri Satya Sai Institute Of Higher Medical Sciences Residential campus, EPIP Area Whitefield, Bangalore 560066 Represented by its Asst.General Manager and constituted Attorney Mr.P.Augustine, s/o. Mr.P.V.Alexander aged about 50 years.
(By Smt.Veena R.Rai- Advocate)
-VS-
1. Ms.Hemambha D Basavarajachar d/o. Mr.Basavarajachar e T.C. aged about f 34 years.
21
O.S.No.2971/2012 e n
2.Mrs.Neelamma d w/o. Mr.Basavarajachar T.C a aged about n 60 years.
No.1. &2t are r/at.Talkad s G.H.Road New Town, T.N.Pur: Taluk, Mysore District Karnataka -571122.
(Defendants- exparte) Date of Institution of the suit : 03/10/2013 Nature of the suit : Recovery of Money Date of commencement of recording of the evidence : 15/07/2014 Date on which the Judgment was pronounced : 28/07/2014 Total Duration Years Months Days 00 09 25 (BHAIRAPPA SHIVALING NAIK ) XII Addl. City Civil & Sessions Judge, Bangalore J U D GME NT This is a suit filed by the plaintiff to recovery money from the defendants.
22
O.S.No.2971/2012
2. The plaintiff is a body corporate constituted under the Banking Companies Act 1970 and represented by its Asst. General Manager and constituted attorney. The defendants availed education loan of Rs.1,07,000/- for defendant No.1 pursuing her P.C.B. B.Sc., Nursing course in M.S.Ramaiah Institute of Nursing Education & Research, Bangalore, by executing required loan documents on 29.10.2007. The defendants jointly executed Demand Promissory Note thereby promised to repay the said loan on demand jointly and severally to the plaintiff Bank along with the interest at the rate of 0.75% p.a. below BOIBPLR with minimum of 12% p.a. compounded monthly or at such other rate as may be from time to time. The defendants have executed Bearer Letter and Instalment letter in favour of plaintiff Bank on 29.10.2007. The defendants have agreed to repay the principal loan amount along with agreed rate of interest, costs and expenses charged during the moratorium period would be amortised and added to the principal before commencement of repayment in 84 E.M.Is commencing from one year after completion of the course or one month after 23 O.S.No.2971/2012 gainful employment whichever is earlier. Further the defendants executed Loan Agreement. The defendant informed to the plaintiff through letter dated.1.1.2010 that she could not complete here course during the year 2007 to 09 and further requested to continue her education loan to the period 2009-2011. An amount of Rs.51,320/- was disbursed on 8.10.2010 towards the payment of 2nd year fees on executing Undertaking letters in favour of the plaintiff Bank. The defendants became highly irregular in the matter of the payment of in spite of several reminders. Meanwhile, the defendants acknowledged the loan amount on 29.1.2010 and on 8.10.2010 thereby confirmed the debt and also renewed the loan documents executed by them. Even then, the defendants could not turn up inspite of legal notice. Hence the plaintiff has constrained to file the suit to recover a sum of Rs.1,29,380/- with future interest thereon at the rate of 12.75% p.a. plus 2% penal interest both compounded monthly.
3. Defendant No.2 was duly served with suit summons but remained absent. Inspite of repeated issue of suit summons and due publication of the citation in the daily 24 O.S.No.2971/2012 newspaper in the daily newspaper, defendant No.1 could not turn up. Hence both the defendants are placed exparte.
4. The plaintiff examined its Manager as P.W.1 and got marked Ex.P1 to Ex.P22. I have heard the counsel for the plaintiff Bank. Perused the evidence on record.
5. The following points arise for my consideration:-
/POINTS/
1) Whether the defendants are jointly and severally liable to pay a sum of Rs.1,29,380/- as on the date of the suit to the plaintiff Bank?
2) Whether the plaintiff is entitled to recover future interest at the rate of 12.75% p.a. + 2% penal interest both compounded monthly from the date of suit, to the date of complete realisation?
3) What order or decree?
6. My findings on the above said Points are as under:-
Point No.1: In the Affirmative Point No.2: In the Affirmative Point No.3: As per final order below 25 O.S.No.2971/2012 for the following:-
/ REASONS /
7. Point Nos.1& 2:- As these points being inter linked with each other, in order to avoid repetition of discussion are taken together for consideration.
8. P.W.1 the Manager of the plaintiff Bank has deposed on the basis of documents executed by the defendants for having availed Education loan for the 1st defendant. The oral evidence of P.W.1 is supported by the documentary evidence. Both the defendants have submitted application form for education loan jointly as per Ex.P1. The 1st defendant has produced the Study certificate issued by the M.S.Ramaiah Institute of Nursing Education & Research as per Ex.P2. The plaintiff Bank obtained borrowers profile as properties Ex.P3. The plaintiff sanctioned loan of Rs.1,07,000/- as per Sanction letter at Ex.P4. Both the defendants have jointly executed On Demand Promissory Note thereby 26 O.S.No.2971/2012 promised to repay the said loan on demand with interest at the rate of 0.75% below BPLR minimum 12.50% p.a. as per Ex.P5. Both the defendants have submitted Bearer letter and Instalment letter as per Ex.P6 & P7 respectively. The defendants have executed Agreement in L-516 and draft declaration as per Ex.P8 and Ex.P9 respectively. The 1st defendant personally requested in writing on several occasions as per letters at Ex.P10 to Ex.P12. Besides both the defendants have submitted Undertaking letter on 8.10.2010 as per Ex.P13 and Ex.P14 respectively. Thereafter both the defendants jointly executed Acknowledgment of Debt on 29.1.2010 and 8.10.2010 as per Ex.P15 & P16. Due to default on the part of the defendants, the plaintiff bank issued legal notice as per Ex.P18. The 2nd defendant was duly served with the said notice as it is evident from postal acknowledgments at Ex.P19 and Ex.P20. The Statement of Accounts pertaining to loan account of defendants disclose that the defendants credited some amount from teem to time till 29.09.2010 but subsequently committed default. As such, the plaintiff has constrained to file the suit to 27 O.S.No.2971/2012 recover a sum of Rs.1,29,380/-. Keeping in mind the nature of loan sanctioned by the plaintiff to the defendants and repayment of the considerable loan amount, though the plaintiff is entitled to claim interest as claimed in the suit, yet I feel it just and proper to grant interest at reasonable rate. Hence without much discussion, I hold that the defendants are jointly and severally liable to pay suit claim amount with future interest thereon at the rate of12.75% p.a. along with costs of the suit. Accordingly I answer both the points.
9. Point No.3:- In the result I proceed to pass the following:-
ORDER The suit of the plaintiff is decreed with costs on the following terms:-
The defendants are jointly and severally liable to pay a sum of Rs.1,29,380/- (Rupees One Lakh Twenty Nine Thousand Three Hundred Eighty only) with interest thereon at the rate of 12.75% p.a. to the plaintiff-bank from the date of suit, to 28 O.S.No.2971/2012 the date of complete realization of the entire amount.
The defendants are directed to pay the decreetal amount within three months from the date of this order.
In case of default in repayment of the decreetal amount, the plaintiff bank shall recover the same from the person and properties of the defendants in accordance with law.
Draw up a decree accordingly.
(Dictated to the Judgment Writer on computer, corrected and then pronounced by me, in open Court, this the 28th day of July 2014.) (BHAIRAPPA SHIVALING NAIK ) XII Addl. City Civil & Sessions Judge, Bangalore A N N E X U R E I. List of witnesses examined on behalf of:
(a) Plaintiff's side :
P.W.1 -Sri.Mahesh V.Naik 29 O.S.No.2971/2012
(b) Defendants side : N I L II. List of documents exhibited on behalf of :
(a) Plaintiff's side :
Ex.P1: Loan application.
Ex.P2: Study certificate.
Ex.P3: Borrowers profile.
Ex.P4: Sanction letter.
Ex.P5: On Demand promissory note.
Ex.P6: Bearer letter.
Ex.P7: Installment letter.
Ex.P8: Agreement in L-516.
Ex.P9: Draft declaration.
Ex.P10: Letter dated 01.01.2010.
Ex.P11: Letter dated. 06.10.2010.
Ex.P12: Letter dated 08.10.2010.
Ex.P13: Undertaking letter dated
08.10.2010.
Ex.P14: Undertaking letter dated
08.10.2010.
Ex.P15: Acknowledgement of debt dated
29.01.2010.
Ex.P16: Acknowledgement of debt dated
08.10.2010.
Ex.P17: Copy of letter dated 28.08.2013.
Ex.P18: Office copy of legal notice
dated14.09.2013.
Ex.P19&P20 Two postal receipts.
: Postal acknowledgement.
Ex.P21: Statement of account.
Ex.P22:
30
O.S.No.2971/2012
(b) Defendants side : NIL
XII ADDL.CITY CIVIL & SESSIONS
JUDGE: BANGALORE CITY.
Judgment pronounced in open court The suit of the plaintiff is decreed with costs as under:-
The defendants are jointly and severally liable to pay a sum of Rs.1,29,380/- (Rupees One Lakh Twenty Nine Thousand Three Hundred Eighty only) with interest thereon at the rate of 12.75% p.a. to the plaintiff-bank from the date of 31 O.S.No.2971/2012 suit, to the date of complete realization of the entire amount.
The defendants are directed to pay the decreetal amount within three months from the date of this order.
In case of default in repayment of the decreetal amount, the plaintiff bank shall recover the same from the person and properties of the defendants in accordance with law.
Draw up a decree accordingly vide Judgment passed.
XII ACC&SJ:BANGALORE CITY.
Issue No.5 in the Negative.32
O.S.No.2971/2012
16. Issue No.6:- In the result, I proceed to pass the following:-
O R D E R The suit of the plaintiff is decreed with costs as under:-
Both the defendants are jointly and severally liable to pay a sum of Rs.8,55,291/- (Rupees Eight Lakhs Fifty Five Thousand Two Hundred Ninety One only) with future interest thereon at the rate of 14% p.a. in respect of Term Loan to the plaintiff-bank from the date of suit, to the date of complete realization.
Both the defendants are jointly and severally liable to pay a sum of Rs.1,11,895/- (Rupees One Lakh Eleven Thousand Eight Hundred Ninety Five only) with future interest thereon at the rate of 14.25% p.a. in respect of Cash Credit Loan to the plaintiff-bank from the date of suit, to the date of complete realization.
The defendants are directed to pay the decreetal amount within three months from the date of this order.
In case of default of payment, the plaintiff may apply to the Court for a 33 O.S.No.2971/2012 final decree for the sale of the mortgaged property and on such application being made the mortgaged property or a sufficient part thereof shall be directed to be sold; and for the purposes of such sale the plaintiff shall produce before the court, or such officer as it appoints, all documents in its possession or power relating to the mortgaged property.
Further the money realized by such sale shall be paid into Court and shall be duly applied (after deduction there from of the expenses of the sale) in payment of the amount payable to the plaintiff under the decree and under any further orders that may be passed in this suit and in payment of any amount which the Court may adjudge due to the plaintiff in respect of such costs of the suit, and such cost, charges and expenses as may be payable under Rule 10, together with such subsequent interest as may be payable under Rule 11, of Order XXXIV of CPC and that the balance, if any, shall be paid to the defendant or other persons entitled to receive the same.
It is also ordered that if the money realized by such sale shall not be sufficient for payment in full of the amount payable to the plaintiff as aforesaid, the plaintiff shall be at liberty 34 O.S.No.2971/2012 to apply for a personal decree against the defendants for the amount of the balance.
Draw up a preliminary decree
accordingly.
(Dictated to the Judgment Writer, transcript thereof corrected, signed and then pronounced by me, in open Court, on this the 19th day of September 2014.) (BHAIRAPPA SHIVALING NAIK ) XII Addl. City Civil & Sessions Judge, Bangalore A N N E X U R E III. List of witnesses examined on behalf of:
(c) Plaintiff's side :
P.W.1 - Mr.Rakesh Mahajan
(d) Defendants side : N I L D.W.1- Mr. G.C.Shekhar Raj Urs IV. List of documents exhibited on behalf of :
(b) Plaintiff's side :
Ex.P1&P2: Two Originals of Borrowers Profile 35 O.S.No.2971/2012 (CBD 23).
Ex.P3&P4: Two Originals of Guarantors Profile (CBD 23).
Ex.P4: Demand promissory note.
Ex.P5&P6: Hypothecation cum loan agreement
(2 in numbers).
Ex.P7: Pay bearer letter.
Ex.P8-P11: Four Declarations executed by the
1st defendant.
Ex.P12&P13: Two Deeds of guarantee executed by 2nd defendant.
Ex.P14-P16: Three acknowledgements of debt.
Ex.P17: Original sale deed executed in
favour of 2nd defendant
dt.05.03.1969.
Ex.P18:
Partition deed dt.29.11.1992.
Ex.P19:
Katha extract standing in the name Ex.P20: of 2nd defendant.
Tax assessment extract of 2nd
Ex.P21: defendant.
Ex.P22: Encumbrance certificate.
Memorandum of evidencing creation of equitable mortgage dt.27.09.2006 executed by 2nd Ex.P23&P24: defendant.
Two cause notice issued U/s. 13(2) of the SARFAESI dt.08.12.2010 Ex.P25&P26: and 21.09.2011. Ex.P27: Two postal acknowledgements. Ex.P28-P30: Legal notice dt.15.03.2012. Ex.P31-P33: Three RPAD receipts. Ex.P34&P35: Three postal covers.
Two statements of account.
36
O.S.No.2971/2012
(b) Defendants side : NIL
---
XII ADDL.CITY CIVIL & SESSIONS
JUDGE: BANGALORE CITY.
(Judgment pronounced in open court) 37 O.S.No.2971/2012 The suit of the plaintiff is decreed with costs as under:-
Both the defendants are jointly and severally liable to pay a sum of Rs.8,55,291/- (Rupees Eight Lakhs Fifty Five Thousand Two Hundred Ninety One only) with future interest thereon at the rate of 14% p.a. in respect of Term Loan to the plaintiff-bank from the date of suit, to the date of complete realization.
Both the defendants are jointly and severally liable to pay a sum of Rs.1,11,895/- (Rupees One Lakh Eleven Thousand Eight Hundred Ninety Five only) with future interest thereon at the rate of 14.25% p.a. in respect of Cash Credit Loan to the plaintiff-bank from the date of suit, to the date of complete realization.
The defendants are directed to pay the decreetal amount within three months from the date of this order.
In case of default of payment, the plaintiff may apply to the Court for a final decree for the sale of the mortgaged property and on such application being made the mortgaged property or a sufficient part thereof shall be directed to be sold; and for the purposes of such sale the plaintiff shall produce before the court, or such officer as it appoints, all documents in its possession or power relating to the mortgaged property.
38 O.S.No.2971/2012 Further the money realized by such sale shall be paid into Court and shall be duly applied (after deduction there from of the expenses of the sale) in payment of the amount payable to the plaintiff under the decree and under any further orders that may be passed in this suit and in payment of any amount which the Court may adjudge due to the plaintiff in respect of such costs of the suit, and such cost, charges and expenses as may be payable under Rule 10, together with such subsequent interest as may be payable under Rule 11, of Order XXXIV of CPC and that the balance, if any, shall be paid to the defendant or other persons entitled to receive the same.
It is also ordered that if the money realized by such sale shall not be sufficient for payment in full of the amount payable to the plaintiff as aforesaid, the plaintiff shall be at liberty to apply for a personal decree against the defendants for the amount of the balance.
Draw up a preliminary decree accordingly vide Judgment passed.
XII ACCJ;BANGALORE 39 O.S.No.2971/2012