Bangalore District Court
The South Indian Bank Ltd vs Mr. Harish Kumar Rao S on 17 December, 2022
1
COM. O.S. No.1662/2022
KABC170031812022
IN THE COURT OF LXXXVII ADDL.CITY CIVIL & SESSIONS
JUDGE, (EXCLUSIVE DEDICATED COMMERCIAL COURT) AT
BENGALURU (CCH.88)
THIS THE 17th DAY OF DECEMBER 2022
PRESENT:
SRI. VIRUPAKSHAIAH H. M.,
B.Com., LL.M.,
LXXXVII ADDL.CITY CIVIL & SESSIONS JUDGE,
BENGALURU.
Com.O.S.No. 1662/2022
PLAINTIFF : The South Indian Bank Ltd.,
A Banking Company having its
Registered Office at SIB House,
T.B.Road, Thrissur-680 001, Kerala,
and a Branch Office at No.10/3-1,
Ashwa Arcade, Banaswadi Main Road,
Maruthi Sevanagar, Bengaluru-560 033
Represented by its Principal Officer
and Chief Manager Mr.Divin D.S.
(Rep. by Sri. N.S., Advocate)
AND
DEFENDANTS : Mr. Harish Kumar Rao S
S/o. Sri. Siddoji Rao,
Aged about 40 years,
R/at. E11, Hanumantharatana Playa
Srigandada Kaval, Sunkadakatte,
Bengaluru North, Viswaneedam,
Bengaluru, Karnataka-560 091
PAN: ABUPH0591C
(exparte)
Date of Institution of the suit 16.11.2022
2
COM. O.S. No.1662/2022
Nature of the suit (suit on Money suit
pronote, suit for declaration &
Possession, Suit for injunction
etc.)
Date of commencement of 16.12.2022
recording of evidence
Date on which judgment was
pronounced 17.12.2022
Total Duration Year/s Month/s Day/s
00 01 01
(VIRUPAKSHAIAH H M),
LXXXVII Addl.City Civil & Sessions Judge,
(Exclusive Commercial Court)
Bengaluru.
JUDGMENT
The Plaintiff Bank has filed the suit against the defendant for recovery of a sum of Rs.5,24,977/- together with current and future interest from at the rate of interest of 9.00% p.a. compounded at monthly rests, along with 2% penal interest from the date of the suit till realization.
2. The case of the plaintiff is that the plaintiff is a Banking Company incorporated under the Companies Act, 3 COM. O.S. No.1662/2022 1913, and functioning under the Provisions of Banking Regulation Act, 1949, having its Registered Office at Thrissur, Kerala and functioning through its various Branches at Bengaluru.
The plaintiff submits that the defendant had approached the Plaintiff Bank for availing a Mobi Loan Facility of Rs.6,20,000/- for the purpose of purchase of Brand New TATA Zest XM Yellow Board against the security of the hypothecation of the vehicle purchased. The said loan along with interest at the rate of 1 year MCLR plus spread altogether that is 9.00% p.a. compounded at monthly rests and was repayable in 60 equitable monthly installments of Rs.12,900/- each and penal interest @ 2% p.a. was payable in case of delayed payments or on non-compliance of terms and conditions of sanction. The Sanction Intimation Letter dated 27.02.2018 was signed by the borrower on 27.02.2018.
The plaintiff further submits that the defendant failed to maintain financial discipline and violated the terms and conditions of sanction. The defendant has been highly 4 COM. O.S. No.1662/2022 irregular in operating the accounts and in servicing the interest and charges in time. The defendant has totally neglected and failed to make prompt payments while availing the about said limit, as a result of which the dues, together with interest amounted to Rs.5,67,802/- as on 29.01.2019, a Demand notice was issued on 15.02.2019 U/ s. 13(2) of the SARFAESI Act 2002, to the last known address of the defendant. The defendant very well know and understand about him agreeing to bank charging interests, charges at rates fixed from time to time beyond the additional/penal interests for defaults or non-compliance and about the outstanding liabilities at various times from the bank/statements/letters. The envelopes containing the Demand Notice have not been served on the defendant, therefore notices have been published in the Local Dailies both English and Kannada namely The New Indian Express and Samyukta Karnataka respectively on 22.09.2019 as per provisions contained in the SARFAESI Act 2002.
The plaintiff thereafter initiated mediation as per amended Sec. 12A of the Commercial Courts Act 2015 by 5 COM. O.S. No.1662/2022 plaintiff by filing an application before the District Legal Services Authority Bengaluru Urban, Bengaluru for referring the matter to mediation and the DLSA has registered Pre-Institution Mediation (PIM) No.693/2022 and further issued notice in the matter, however the defendant failed to appear in the matter despite service of notice, therefore the DLSA has declared that the mediation as "non- starter".
The record of transactions of the Mobi Loan Facility are maintained in the core banking solution platform-
"finacle" as A/c No: 0231655000000248 as per the Statement of Accounts in respect of the Mobi loan Account, an amount of Rs.5,24,977/- is outstanding as on 08.11.2022 after reversing interest on penal interest and the account is reversed as per the directives of the Hon'ble Supreme Court of India.
The cause of action arose on 27.02.2018 when loan was sanctioned and various loan and security documents were executed and lastly on 15.02.2019 when the Demand Notice U/s. 13(2) of SARFAESI Act, 2002 was issued and on 6 COM. O.S. No.1662/2022 account of non-payment of dues and non-compliance of terms and conditions, therefore, the cause of action is still subsisting against the defendants. The suit is filed within 3 years of last payment made by the defendant. Further, due to the challenge faced by the country on account of COVID- 19 virus and lock down ordered by the State and Central Governments, the plaintiff could file the original suit now only and the limitation is not applicable as per the extension of limitation based on the order dated 23.03.2020 of the Hon'ble Supreme Court of India in Suo Moto Writ Petition (Civil) No.(s) 3/2020, duly extended from time to time.
4. Inspite of service of summons to the defendant through his sister, defendant did not appear before the Court and hence they are placed exparte. The Chief Manager of the Plaintiff Bank got examined as PW1 and got marked 7 documents as Ex.P1 to P7.
5. Heard learned counsel for the plaintiff.
6. The points that arise for my consideration are:- 7
COM. O.S. No.1662/2022
1. Whether the plaintiff is entitled to the relief claimed in the plaint ?
2. What Order or decree ?
7. My findings on the above points are as under:
Point No.1 :- Partly in the Affirmative. Point No.2 :- As per the final Order for the following reasons.
REASONS
8. Point No.1:- In order to prove the case, the plaintiff mainly relies upon the oral evidence of PW1 and documents of Ex.P.1 to Ex.P.7. Learned counsel for the plaintiff would argue to support the pleadings, oral as well as documentary evidence of the plaintiff and lastly pray to pass the decree.
9. PW1 specifically deposed by way of filing affidavit in lieu of his chief-examination and reiterated the facts as averred in the plaint once again on oath and has produced the documents at Ex.P.1 to Ex.P.7. Ex.P.1 is the copy of loan sanction letter, Ex.P.2 is the hypothecation agreement, Ex.P.3 is the recall notice, Ex.P.4 is the unserved RPAD cover, Ex.P.4(a) is the notice under RPAD cover, Ex.P.5 is 8 COM. O.S. No.1662/2022 the postal receipt, Ex.P.6 is the PIM report, Ex.P.7 is the copy of Account statement with certificate.
10. The oral evidence of PW.1 and the documents relied upon by the Plaintiff Bank are unchallenged by the defendant in any manner. They are all support the case of the plaintiff. There is no any reason to doubt the version of PW.1 and the documents relied upon by the Plaintiff Bank.
There are no any reasons to discard the same.
11. The proceedings being civil in nature, the appreciation of evidence necessarily under the touch stone of preponderance of probabilities as against the proof beyond all reasonable doubt in a criminal case. The very fact that the defendant remained absent and not contested the case indicates that he was not disputing the claim of the plaintiff alleged against him in the plaint. When the defendant does not enter into the witness box and deny the case of the plaintiff and states his own case on oath and does not offer himself to be cross-examined by the plaintiff, a presumption would arise that a case set up by the plaintiff bank is correct. It would give rise to an inference 9 COM. O.S. No.1662/2022 adverse against them and drew a presumption under Section 114 of Evidence Act against the defendant. When the defendant not challenged the case as well as evidence of the plaintiff and there are no reasons to discard the same, hence, there is no impediment to accept the case of the plaintiff and dispose of accordingly.
12. The plaintiff Bank claimed interest at present rate 9.00% plus penal interest at 2%, in all 11.00%. Which is reflected in the loan documents executed by the defendant in favour of plaintiff. The transaction is commercial one. Hence, the Plaintiff Bank is entitled future interest at 11% p.a. on the suit claim from the date of suit till realization.
In view of the above facts and circumstances and the material on record, I am of the view that the suit of the plaintiff bank is deserved to be decreed. Hence, answer point No.1 partly in the Affirmative.
13. Point No.2:- For the aforesaid reasons, I proceed to pass the following:
ORDER The suit of the Plaintiff Bank is hereby 10 COM. O.S. No.1662/2022 partly decreed with costs.
The Defendant is hereby directed to pay a sum of Rs.5,24,977/- and future interest at 11% p.a. from the date of suit till realization.
The Advocate for the plaintiff is directed to file Memorandum of Cost before the Office within 5 days from today.
Draw decree accordingly.
(Dictated to the Stenographer online, typed by her, corrected and then pronounced by me in open Court on this the 17th day of December, 2022).
(VIRUPAKSHAIAH H M), LXXXVII Addl.City Civil & Sessions Judge, (Exclusive dedicated Commercial Court) Bengaluru.
ANNEXURE LIST OF WITNESSES EXAMINED ON BEHALF OF THE PLAINTIFF PW-1 Sri. Divin D S 11 COM. O.S. No.1662/2022 LIST OF DOCUMENTS EXHIBITED ON BEHALF OF THE PLAINTIFF Ex.P.1 : Sanction letter Ex.P.2 : Hypothecation agreement Ex.P.3 : Recall notice Ex.P.4 : Unserved RPAD cover Ex.P.4(a) : Notice under RPAD cover Ex.P.5 : Postal receipt Ex.P.6 : PIM report Ex.P.7 : Copy of Account statement with certificate LIST OF WITNESSES EXAMINED ON BEHALF OF THE DEFENDANT NIL LIST OF DOCUMENTS EXHIBITED ON BEHALF OF THE DEFENDANT NIL (VIRUPAKSHAIAH H M), LXXXVII Addl.City Civil & Sessions Judge, Bengaluru.