Bangalore District Court
Bank Of India vs Mrs. Shameen Hiriyal on 11 June, 2021
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O.S No. 6409/2019
IN THE COURT OF THE LXXV ADDITIONAL CITY CIVIL AND
SESSION JUDGE AT BENGALURU CITY (CCH76)
: Present:
Sri. N. Sunil Kumar Singh, B.com., LL.B.,
LXXV Addl.City Civil & Session Judge,
Bengaluru
Dated on this the 11th day of June 2021
O.S No.6409/2019
Plaintiff/s Bank of India
A body corporate constituted under
Banking Companies (Acquisition &
Transfer of Undertakings) Act 1970
Having head office at Star House,
Plot No. C.5.G Block,
Bandra Kurla Complex,
Bandra(East), Mumbai - 400 051.
having a branch office amongst other place
at Bank of India, Sanjaynagar Branch,
No.1 & 24, Raghothaman Smarak Sahakar
Kendra, RMS Colony, Bengaluru - 560094,
By Chief Manager and Constituted
Attorney Holder
By Senior Manager and Constituted
Attorney Holder
Mr. Shivarudrayya C. Kolurmath
S/o Channabasayya, Aged about 56 years.
[By Sri. G.P Advocate]
/V e r s u s/
Defendant/s Mrs. Shameen Hiriyal
W/o. Syed Shakeel Ahmed
Aged about 42 years
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O.S No. 6409/2019
No.4/A, 2nd 'D' Corss,
Kalpana Chawla Road, Bhoopsandra,
RMV Extension, Bengaluru - 560094.
Also at:
No.10, 7th Cross, Muneshwara Layout,
Near New Carmal School Back side,
Hegganahalli, Bengaluru - 560091.
And also at:
No.282, 10th Cross, Ashwathnagar,
Marathahalli, Bengaluru - 560037.
[Exparte]
Date of the institution of suit: 30.08.2019
Nature of the suit: Money Suit
Date of the commencement of 09.12.2019
recording of the evidence:
Date on which the judgment was 11.06.2021
pronounced:
Total duration: Year/s Month/s Day/s
01 09 11
JUDGMENT
This suit is filed by the plaintiff against the defendant for recovery of money and such other reliefs.
2. The facts in brief of the plaintiff case is that, plaintiff is the banking company incorporated under the Banking Companies 3 O.S No. 6409/2019 (Acquisition and Transfer of Undertaking) Act, 1970 having its head office at Mumbai and one of the branch at Sanjaynagar Bengaluru. The plaintiff is doing banking business and the defendant has approached the plaintiff bank for financial assistance under PMEGP Government sponsored scheme for a sum of Rs.14,50,000/ and after verifying the application of the defendant the plaintiff bank granted term loan of Rs.9,02,500/ and also granted cash credit loan of Rs.47,500/ on 25.10.2018 for purchase of raw materials. The term loan was granted under loan Account No.849377740000004 on 30.11.2018 and cash credit loan was granted in a sum of Rs.47,500/ on 11.12.2018 under loan Account No.849330110000044. On the date of availing such loan the defendant has executed necessary loan papers and on demand promissory note and agreement of hypothecation of machinary agreeing to repay the loan amount in 60 monthly installments of Rs.19,601/ each commencing from January 2019 along with interest at 10.65% p.a with monthly rests. After availing of such loan amount by the defendant 4 O.S No. 6409/2019 plaintiff bank has maintained loan ledger account of the defendant in regular course of business transaction.
3. After availing of such loan defendant not paid the installments regularly towards loan account and she was chronic defaulter. There was outstanding balance of Rs.8,84,359.38/ in term loan as on 27.07.2019 and Rs.48,839/ was outstanding in cash credit loan on 29.06.2019. Hence, the plaintiff bank issued legal notice to the defendant on 29.07.2019 calling upon the defendant to repay the outstanding loan amount. The said legal notice was served on the defendant on 06.08.2019. Despite of service of legal notice defendant neither paid the outstanding loan amount nor replied to the said legal notice. Hence, without any alternative the plaintiff bank filed the present suit against the defendant for recovery of total sum of Rs.9,34,638.91 p.s./ which includes the outstanding balance of term loan in a sum of Rs.8,68,119.91 p.s./ and interest of Rs.16,620/ accrued from 30.06.2019 till 27.08.2019 and also includes outstanding balance of cash credit loan amount of Rs.48,839/ and accrued interest at 5 O.S No. 6409/2019 Rs.1,060/ from 30.06.2019 till 27.08.2019. The defendant is liable to pay total sum of Rs.9,34,638.91 p.s./ along with interest at the rate of 10.65% p.a with monthly rests and penal interest of 2.30% from the date of suit till realization. Hence, it is prayed to decree the suit with cost.
4. After service of suit summons defendant not appeared in the present suit. Hence, defendant was placed exparte and case was posted for plaintiff evidence.
5. In order to prove the case of the plaintiff the manager of plaintiff Bank got examined himself as PW.1 by filing his affidavit evidence and got marked Ex.P.1 to P.20. Since, the defendant was placed exparte there is no evidence available on behalf of the plaintiff.
6. Heard arguments of learned counsel for plaintiff.
7. The points arise for my consideration are:
1) Whether the plaintiff bank proves that, defendant has borrowed term loan of Rs.9,02,500/ and cash 6 O.S No. 6409/2019 credit loan of Rs.47,500/ on 25.10.2018 from the plaintiff bank agreeing to repay the same in 60 monthly installments of Rs.19,601/ each along with interest at 10.65% p.a ?
2) Whether the plaintiff bank proves that, defendant is liable to pay a sum of Rs.8,84,359.38 towards the term loan of Rs. 48,839/ towards cash credit loan to the plaintiff bank as on 29.06.2019 ?
3) Whether the plaintiff bank proves that, they are entitled to recover a sum of Rs.9,34,638.91 p.s./ along with interest at 10.65% p.a with monthly rests along with penal interest at 2.30% p.a from the date of suit till realization from the defendant ?
4) Whether the plaintiff bank is entitled for the reliefs as claimed in the suit ?
5) What order or decree ?
8. My findings to the above points are as under:
POINT No.1 & 2 : In the Affirmative
POINT No.3 & 4 : In partly Affirmative
POINT No.5 As per final order for the following:
REASONS
9. POINT No.1 to 4 : Since, these four points are interconnected to each other, they have been taken together for 7 O.S No. 6409/2019 discussion in order to avoid repetition of the facts and findings to be given there under.
10. It is the case of plaintiff is that, plaintiff is the banking company incorporated under the Banking Companies (Acquisition and Transfer of Undertaking) Act, 1970 having its head office at Mumbai and one of the branch at Sanjaynagar Bengaluru. The plaintiff is doing banking business and the defendant has approached the plaintiff bank for financial assistance under PMEGP Government sponsored scheme for a sum of Rs.14,50,000/ and after verifying the application of the defendant the plaintiff bank granted term loan of Rs.9,02,500/ and also granted cash credit loan of Rs.47,500/ on 25.10.2018 for purchase of raw materials. The term loan was granted under loan Account No.849377740000004 on 30.11.2018 and cash credit loan was granted in a sum of Rs.47,500/ on 11.12.2018 under loan Account No.849330110000044. On the date of availing such loan the defendant has executed necessary loan papers and on demand promissory note and agreement of 8 O.S No. 6409/2019 hypothecation of machinary agreeing to repay the loan amount in 60 monthly installments of Rs.19,601/ each commencing from January 2019 along with interest at 10.65% p.a with monthly rests. After availing of such loan amount by the defendant plaintiff bank has maintained loan ledger account of the defendant in regular course of business transaction.
11. After availing of such loan defendant not paid the installments regularly to the loan account and she was chronic defaulter. There was outstanding balance of Rs.8,84,359.38/ in term loan as on 27.07.2019 and Rs.48,839/ was outstanding in cash credit loan on 29.06.2019. Hence, the plaintiff bank issued legal notice to the defendant on 29.07.2019 calling upon the defendant to repay the outstanding loan amount. The said legal notice was served on the defendant on 06.08.2019. Despite of service of legal notice defendant neither paid the outstanding loan amount nor replied to the said legal notice. Hence, without any alternative the plaintiff bank filed the present suit against the defendant for recovery of total sum of Rs.9,34,638.91 p.s./ which includes the outstanding balance of 9 O.S No. 6409/2019 term loan in a sum of Rs.8,68,119.91 p.s./ and interest of Rs.16,620/ accrued from 30.06.2019 till 27.08.2019 and also includes outstanding balance of cash credit loan amount of Rs.48,839/ and accrued interest at Rs.1,060/ from 30.06.2019 till 27.08.2019. The defendant is liable to pay total sum of Rs.9,34,638.91 p.s./ along with interest at the rate of 10.65% p.a with monthly rests and penal interest of 2.30% from the date of suit till realization to the plaintiff.
12. In order to prove the case of the plaintiff, the manager of plaintiff bank got examined himself as PW.1 by filing his affidavit evidence reiterated the plaint averments and deposed that, plaintiff bank has filed the present suit against the defendant for recovery of Rs.9,34,638.91 p.s./ along with interest at 10.65% p.a from the date of suit till realization. It is further deposed by PW.1 that, plaintiff is banking company incorporated under Banking Companies (Acquisition and Transfer of Undertaking) Act, 1970 having its head office at Mumbai and one of the branch at Sanjaynagar Bengaluru. It is further deposed by PW.1 that, plaintiff bank is functioning and doing banking 10 O.S No. 6409/2019 business. In order to dispute the said fact the defendant not appeared in the present suit nor disputed the same.
13. PW.1 further deposed that, defendant has submitted loan application under PMEGP scheme for financial assistance of Rs.14,50,000/ and also submitted an application for cash credit of Rs.47,500/for purchasing of Raw materials on 25.10.2008 and in pursuance of the same they have sanctioned term loan of Rs.9,02,500/ under loan Account No.849377740000004 and also sanctioned sum of Rs.47,500/ as cash credit loan for purchase of Raw materials on 30.11.2018. In order to substantiate the same the loan application for short term loan submitted by the defendant to the plaintiff bank is marked as Ex.P.1, loan application for cash credit is marked as Ex.P.2, the loan sanctioned letter is marked as Ex.P.3. It is further deposed by PW.1 that, after sanctioning of loan amount the defendant has executed on demand promissory note for both the loan accounts and also hypothication agreement in favour of the plaintiff bank. In order to substantiate the same the On demand promissory note executed for short term loan is marked as Ex.P.4 and 11 O.S No. 6409/2019 hypothication agreement is marked as Ex.P.5. It is also deposed by PW.1 that, the defendant has agreed to pay the loan amount in 60 monthly installments of Rs.19,601/ each commencing from January 2019. In order to substantiate the same installment letter executed by the defendant is marked as Ex.P.6 and joint promissory note is marked as Ex.P.7. The agreement of loan and hypothication agreement are marked as Ex.P.8 & 9, the promissory note executed for cash credit loan by the defendant is marked as Ex.P.10 and joint promissory note is marked as Ex.P.11, hypothication agreement for cash credit loan executed by the defendant in favour of plaintiff bank is marked as Ex.P.12, MCR agreement and term loan agreement are marked as Ex.P.13 & 14. It is further deposed by PW.1 that, after availing such loan they have maintained ledger account of both the loan accounts in the regular course of business transaction. The plaintiff was chronic defaulter in payment of loan amount and there was outstanding balance of Rs.8,84,359.38 p.s./ towards the term loan on 22.07.2019 and Rs.48,839/ was balance towards cash credit loan on 29.06.2019.
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O.S No. 6409/2019
14. PW.1 further deposed that, since the defendant was chronic defaulter in payment of installment amount towards term loan and cash credit loan they have issued legal notice to the defendant on 29.07.2019 calling upon to pay the balance amount outstanding towards both the loan account. In order to substantiate the same the notice copy is marked as Ex.P.15 and for having sent the said legal notice to the defendant by RPAD the postal receipts are marked as Ex.P.16, two notices served on the defendant as per postal acknowledgements marked as Ex.P.20. But another two postal covers returned unexecuted and un executed postal covers are marked as Ex.P.17 & 18 and copies of legal notices are marked as Ex.P.17(a) & 18(a) respectively. Despite of service of said legal notice on the defendant she has not replied nor complied to the said legal notice of the plaintiff. In order to substantiate the same the plaintiffs have maintained loan ledger account of the defendant in the regular course of business transaction and the loan ledger account extract is marked as Ex.P.19. The recitals of which clearly discloses that, a sum of Rs.8,84,359.38 p.s./ was outstanding towards term loan 13 O.S No. 6409/2019 on 22.07.2019 and Rs.48,839/ was outstanding towards cash credit loan on 29.06.2019.
15. PW.1 further deposed that, as per loan ledger account of the defendant maintained by them it discloses that, there is outstanding balance of Rs. 9,34,638.91 p.s./ towards both the loan accounts. Hence, they are entitled to recover the same from the defendant along with interest at 10.65 % p.a and penal interest at 2.30% from the date of suit till realization. In order to rebut the evidence and documents of PW.1, the defendant not appeared in the present suit nor adduced any evidence on her behalf. In the absence of rebuttal evidence on behalf of the defendant there is no material available on record to disbelieve the evidence and documents of PW.1 herein. As per the evidence of PW.1 and documents Ex.P.1 to P.20 it clearly discloses that, after availing term loan of Rs.9,02,500/ and cash credit loan of Rs. 47,500/ on 30.11.2018 by the defendant and the defendant was chronic defaulter in payment of installment amount towards loan accounts with the plaintiff bank. Hence, plaintiff bank is entitled to recover the suit claim of Rs.9,34,638.91 p.s./ along 14 O.S No. 6409/2019 with interest at 10.65% p.a. from the defendant. Taking into consideration the loan transaction the plaintiffs are not entitled to impose penal interest at 2.30% on the outstanding loan amount which is exhobident. Even though as per the term of agreement the plaintiffs have right to recover the penal interest. The imposing of penal interest is not proper since, the loan granted to the defendant was under Government scheme. But as per the terms of agreement plaintiff being the banking institution are entitled to recover the interest at 10.65 % p.a on the outstanding loan amount as per the loan ledger accounts maintained by the plaintiff bank under regular course of business transaction. Thus, the plaintiff bank is entitled to recover the suit claim from the defendant along with interest at 10.65% p.a. Accordingly, I hold Point No.1 & 2 as Affirmative and Point No. 3 & 4 as partly Affirmative.
16. POINT No.5 : For my discussion to point No. 1 to 4 above, I proceed to pass the following:
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O.S No. 6409/2019 ORDER Suit of the plaintiff is partly decreed with cost.
The plaintiff bank is entitled to recover a sum of Rs.
9,34,638.91 p.s./ from the defendant along with interest at 10.65% p.a from the date of suit till realization.
Draw decree accordingly.
[Dictated to the Stenographer, transcript thereof corrected, signed and then pronounced by me, in the Open Court on this the 11th day of June 2021] [N.Sunil Kumar Singh] LXXV Additional City Civil and Session Judge Bengaluru.
ANNEXUERE List of witnesses examined for plaintiff: PW.1 Mr. Dayanand Namdeo Kumbhar List of documents exhibited for plaintiff: Ex.P.1 Loan Application Ex.P.2 Borrower's Profile Ex.P.3 Sanction Letter Ex.P.4 On demand promissory note 16 O.S No. 6409/2019 Ex.P.5 Hypothication come loan agreement Ex.P.6 Installment letter Ex.P.7 Bearer letter dated: 30.11.2018 Ex.P.8 Consolidated declaration dated: 30.11.2018 Ex.P.9 M.C.L.R agreement dated: 30.11.2018 Ex.P.10 On demand promissory note Ex.P.11 Bearer letter dated: 11.12.2018 Ex.P.12 Hypothication come loan agreement dated:
11.12.2018 Ex.P.13 Consolidated declaration dated: 11.12.2018 Ex.P.14 M.C.L.R agreement Ex.P.15 Copy of legal notice Ex.P.16 Postal receipt Ex.P.17 Return postal cover, Legal notice Ex.P.17(a) Ex.P.18 Return postal cover, Legal notice Ex.P.18(a) Ex.P.19 Statement of account Ex.P.20 Postal acknowledgement List of witnesses examined and documents exhibited for defendant/s:
..Nil..
[N.Sunil Kumar Singh] LXXV Additional City Civil and Session Judge Bengaluru