Bangalore District Court
Bank As Agreed By Them At The Time Of ... vs By Issuing A Legal Notice Through Rpad ... on 2 February, 2016
IN THE COURT OF THE SMALL CAUSES, AT BANGALORE
(SCCH-7)
Dated this, the 2nd day of February, 2016.
Present : SMT. INDIRA MAILSWAMY CHETTIYAR
B.Com.,LL.B.(Spl.,),L.L.M.,
IX Addl. Small Causes Judge & XXXIV ACMM,
Court of Small Causes,
Member, MACT-7, Bangalore.
S.C.No.1079/2015
Vijaya Bank, : ..... PLAINTIFF
Cox Town Branch,
Bangalore - 560 005.
Represented by its
Chief Manager,
Mr. Pradeep Kumar.E.,
S/o Late Kamil.E.,
Aged about 48 years.
(By Sri. V. Raghunathan, Adv.,)
V/s
1.Mr. K.Narayan., :
S/o Kannan, ..... DEFENDANTS
Aged about 34 years,
Residing at No.258,
2nd Cross, R.R. Oil Mill Road,
Saint Playa,
Kacharakanahalli,
Bangalore - 560 084.
2. Mrs. P.Himavathy,
W/o R.C. Subramanya,
Aged about 54 years,
Residing at No.180,
ITC Colony,
SCH-7 2 S.C.No.1079/2015
Jevanahalli,
Bangalore - 560 005.
(D-1 Exparte)
(D-2 By Sri. D. Gunashekar, Adv.,)
1. Date of Institution : 11.09.2015
2. Nature of Suit : Recovery of Money
3. Date of Evidence : 19.01.2016
4. Date of Judgment : 02.02.2016
5. Total duration : YEAR/S MONTH/S DAYS
00 04 22
(INDIRA MAILSWAMY CHETTIYAR)
IX Addl. Small Causes Judge & XXXIV ACMM,
Court of Small causes,
Member, MACT-7, Bangalore.
JUDGMENT
The Plaintiff Bank has filed this suit as against the Defendants No.1 and 2 for recovery of Rupees 56,300/- with current and future interest at the rate of 12% p.a., with monthly rests from the date of the suit till the date of payment and a sum of Rupees 2,500/- being the typing and other miscellaneous expenses incurred by it as per Order XXA of C.P.C. and for seizure and sale of hypothecated movables, with costs.
2. The brief averments of the Plaintiff Bank's case are as follows;
SCH-7 3 S.C.No.1079/2015
a) It is one of the several Branches of Vijaya Bank, a body
corporate incorporated under the provisions of Banking
Companies (Acquisition and Transfer of Undertakings) Act, 1980, having its Head Office at No.41/2, M.G. Road, Bangalore - 560
001. It is a Government of India Undertakings.
b) Mr. Pradeep Kumar. E. S/o Late Kamil. E., the Chief Manager of its Branch is authorized by it to file this plaint and to verify the pleadings or documents in connection with this suit.
c) The Defendant approached it for a secured loan of Rupees 1,00,000/- for the purpose of purchase of Chips Making machine and furniture and accessories.
d) It sanctioned a sum of Rupees 1,00,000/- to the Defendant on 02.07.2010.
e) The Defendant No.1 executed an On Demand Promissory Note dated 25.09.2010 for a sum of Rupees 1,00,000/- at 10% interest per annum to be compoundable monthly.
f) The Defendant No.1 also executed a Letter of Repayment on the even date in favour of it agreeing to repay the loan in 60 EMI with the agreed rate of interest and in default, further agreed to pay additional 2% penal interest on the sum revived.
SCH-7 4 S.C.No.1079/2015
g) The Defendant No.1 also executed an Articles of Agreement dated 25.09.2010 for a sum of Rupees 1,00,000/- in favour of it.
h) The Defendant No.1 also executed Hypothecation Agreement dated 25.09.2010 in favour of it, hypothecating of Potato, Oil, furniture and other accessories secured under the loan.
i) The Defendant No.1 also executed a Letter of Lien dated 25.09.2010 in favour of it.
j) The Defendant No.2 is the guarantor of the loan availed by the Defendant No.1 and had executed a Letter of Continuing Guarantee in favour of it.
k) The Defendant also executed and delivered the Acknowledgement of Liability dated 30.06.2012 and 03.01.2013 in favour of it.
l) It got issued a lawyer notice to the Defendants on 05.03.2015 by registered post acknowledgement due and the said notice returned un-served on the Defendant No.1 and served on the Defendant No.2.
SCH-7 5 S.C.No.1079/2015
m) The Defendants, who had promised to discharge the
loan in monthly installments, have failed to do so as reflected in the computerized statement of account.
n) After giving credit to the repayment made by the Defendant, the Defendants are still due in a sum of Rupees 56,300/- as on the date of filing of this suit as per computarised Statement of Account of the Defendants in A/c No.109709041000029 as follows;
Book debt Rs. 40,164-00
Unapplied interest from 25.11.2012
to 10.09.2015 Rs. 16,136-00
Total amount due from Defendants Rs. 56,300-00
o) Inspite of repeated requests and Lawyer's notice on
05.03.2015, the Defendants not bothered to clear the loan outstanding.
p) There is no pendency of any legal proceedings and litigation with either in the past or present concerning any part of the subject-matter of this suit in any Court within the knowledge of it. Hence, pleading cause of action, the Plaintiff Bank has filed this suit.
SCH-7 6 S.C.No.1079/2015
3. Though the suit summons was duly served on the Defendant No.1 through paper publication, he was remained absent and hence, he is placed as exparte on 04.01.2016.
4. In response to the suit summons, the Defendant No.2 has appeared before this Court through her Learned Counsel. But, inspite of giving sufficient opportunities, the Defendant No.2 has not filed the written statement.
5. In order to prove its case, the Plaintiff Bank has examined its Chief Manager as P.W.1 by filing an affidavit as his examination-in-chief and has placed reliance upon Ex.P.1 to Ex.P.15.
6. Heard the arguments.
7. Now, the Points that arise for my consideration are as follows;
POINTS
1. Whether the Plaintiff Bank is entitled for a sum of Rupees 56,300/- with current and future interest at the rate of 12% p.a. with monthly rests from the date of the suit till its realization and Rupees 2,500/- towards typing and miscellaneous expenses from the Defendants jointly and severally, with costs and for SCH-7 7 S.C.No.1079/2015 seizure and sale of hypothecated movables, as prayed for?
2. What Order?
8. My answers to the above Points are as follows;
Point No.1 : In the Affirmative, Point No.2 : As per the final Order, for the following;
REASONS
9. POINT NO.1 :- The Plaintiff Bank has filed this suit as against the Defendants No.1 and 2 for recovery of Rupees 56,300/- with current and future interest at the rate of 12% p.a., with monthly rests from the date of the suit till the date of payment and a sum of Rupees 2,500/- being the typing and other miscellaneous expenses incurred by it as per Order XXA of C.P.C. and for seizure and sale of hypothecated movables, with costs.
10. The P.W.1, who is the Chief Manager of the Plaintiff Bank, has stated in his examination-in-chief that, the Defendants approached their Bank for a secured loan of Rupees 1,00,000/- for the purpose of purchase of Chips Making Machine and furniture and accessories and their Bank sanctioned a sum of Rupees 1,00,000/- to the Defendant on 02.07.2010. He has further stated that, the Defendant No.1 executed an On Demand Promissory Note dated 25.09.2010 for a sum of Rupees 1,00,000/-
SCH-7 8 S.C.No.1079/2015 at 10% interest per annum to be compoundable monthly and the Defendant No.1 also executed a Letter of Repayment on the even date in favour of their Bank agreeing to repay the loan in 60 EMI with the agreed rate of interest and in default, further agreed to pay additional 2% penal interest on the sum received. He has further stated that, the Defendant No.1 also executed an Articles of Agreement dated 25.09.2010 for a sum of Rupees 1,00,000/- in favour of their Bank and also Hypothecation Agreement dated 25.09.2010 in favour of their Bank, hypothecating the goods secured under the loan. He has further stated that, the Defendant No.2 is a guarantor of the loan availed by the Defendant No.1 and had executed a Letter of Continuing Guarantee in favour of their Bank.
11. To corroborate the oral version of P.W.1 as well as its case, the Plaintiff Bank has produced Ex.P.1 Loan Application, Ex.P.2 Sanction Letter dated 02.07.2010, Ex.P.3 On Demand Promissory Note dated 25.09.2010, Ex.P.4 Letter of Repayment dated 25.09.2010, Ex.P.5 Articles of Agreement dated 25.09.2010, Ex.P.6 Hypothecation Agreement dated 25.09.2010, Ex.P.7 Letter of Lien dated 25.09.2010 and Ex.P.8 Letter of Guarantee dated 25.09.2010.
12. On perusal of the contents of Ex.P.1 to Ex.P.8, it clearly goes to show that, the Defendant No.1 as a borrower and the Defendant No.2 as a guarantor have borrowed a loan of Rupees 1,00,000/- from the Plaintiff Bank for the purpose of SCH-7 9 S.C.No.1079/2015 Chips Making Machine and Furniture and Accessories on 25.09.2010 agreeing to repay the same in 60 equal monthly installments with interest at the rate of 10% p.a., compounded monthly and also penal interest at the rate of 2% p.a., in case of default and both the Defendants No.1 and 2 have executed the said necessary and required documents in favour of the Plaintiff Bank and they have hypothecated the goods secured under the said loan.
13. The P.W.1 has stated that, the Defendants have also executed and delivered the Acknowledgement of Liability dated 30.06.2012 and 03.01.2013 in favour of their Bank. He has further stated that, their Bank got issued Legal Notice to the Defendants on 05.03.2015 by registered post acknowledgement due and the said notice returned un-served on the Defendant No.1 and served on the Defendant No.2. He has further stated that, the Defendants, who had promised to discharge the loan in monthly installments have failed to do so as reflected in the computerized statement of account and after giving credit to the repayment made by the Defendants, the Defendants are still due in a sum of Rupees 56,300/- as on the date of filing of this suit as per computerized statement of account of the Defendants in A/c No.109709041000029. He has further stated that, after filing of the suit, no amount paid by the Defendants as against the said suit claim.
SCH-7 10 S.C.No.1079/2015
14. To consider the oral version of P.W.1 as well as its case, the Plaintiff Bank has produced Ex.P.9 Acknowledgement of Liability dated 30.06.2012, Ex.P.10 Acknowledgment of Liability dated 03.01.2013, Ex.P.11 Office Copy of Legal Notice dated 05.03.2015, Ex.P.12 Postal Receipts 2 in numbers, Ex.P.13 Returned Un-served Postal Cover, Ex.P.14 Postal Acknowledgement and Ex.P.15 Statement of Account along with Certificate.
15. On perusal of the entries made in Ex.P.15 Statement of Account, it clearly goes to show that, the Defendants are very irregular in making repayment of the loan installments to the Plaintiff Bank as agreed by them at the time of borrowing the said loan and as such, as on 30.04.2013, a sum of Rupees 40,164/- is due from the Defendants to the Plaintiff Bank and on 11.09.2015, 25.11.2012 to 10.09.2015 interest at 10% p.a., for 1019 days, which is amount of Rupees 13,456/- and penal interest from 25.12.2012 to 10.09.2015 at 2% for 1019 days, which is amounting of Rupees 2,680/-, in total, Rupees 16,136/- is also due from the Defendants, in total, as on the date of filing of the present suit a sum of Rupees 56,300/- is due from the Defendants to the Plaintiff Bank. From this, it is made crystal clear that, as on the date of the filing of the present suit, a sum of Rupees 56,300/- is due from the Defendants to the Plaintiff Bank in respect of the said loan, which was borrowed on 25.09.2010.
SCH-7 11 S.C.No.1079/2015
16. To deny or to discard the same, nothing is available on record on behalf of the Defendants, as, though the suit summons was duly served on the Defendant No.1 through paper publication, he was remained absent and hence, he is placed as exparte and the Defendant No.2, though has appeared before this Court through her Learned Counsel, in spite of giving sufficient opportunities, she has not filed the Written Statement to contest the case of the Plaintiff Bank and even not cross-examine the P.W.1. From this, it appears that, the Defendants No.1 and 2 have indirectly admitted the entire case made out by the Plaintiff Bank as against them in the present suit as well as evidence adduced by the Plaintiff Bank to prove its case in the present suit.
17. The contents of Ex.P.11 to Ex.P.14 further clearly disclosed that, before filing of the present suit, the Plaintiff Bank has made a prompt efforts for recovery of the loan dues from the Defendants by issuing a Legal Notice through RPAD and the said notice was duly served on the Defendant No.2 and it was un- served, which issued to the Defendant No.1 and in spite of that, the Defendants did not care to repay the outstanding loan amount to the Plaintiff Bank. Since, the Defendants have not repaid the loan amount as agreed by them and even in spite of issuance of Legal Notice, the Plaintiff Bank has no other alternative has filed the present suit as against the Defendants for recovery of the suit claim amount of Rupees 56,300/-. Hence, the Plaintiff Bank has cause of action for filing the present suit as against the Defendants.
SCH-7 12 S.C.No.1079/2015
18. The date of loan is on 25.09.2010. The Plaintiff Bank has filed the present suit as against the Defendants on 11.09.2015. On perusal of the said dates, it appears that, the Plaintiff Bank has filed the present suit as against the Defendants is not within a period of limitation. But, based on the same, it cannot be said that, the suit filed by the Plaintiff Bank as against the Defendants is barred by law of limitation and as such, it is not maintainable, as, the Plaintiff Bank has produced Ex.P.9 Acknowledgement of Liability dated 30.06.2012 and Ex.P.10 Acknowledgement of Liability dated 03.01.2015, which clearly disclosed that, within a period of limitation, the Defendant No.1 has acknowledged the debt due by him to the Plaintiff Bank from time to time and within 3 years from the date of Ex.P.10 Acknowledgement of Liability, the Plaintiff Bank has filed the present suit. Therefore, the suit filed by the Plaintiff Bank as against the Defendants is well within the time and as such, it is maintainable.
19. The Plaintiff Bank has claimed current and future interest at the rate of 12% p.a., with monthly rests on the suit claim of Rupees 56,300/- from the date of the suit till the date of payment and also Rupees 2,500/- towards typing and other miscellaneous expenses and for seizure and sale of hypothecated movables. Based on the entries made in Ex.P.15 Statement of Account, this Court has already observed and come to the conclusion that, the Defendants are very irregular in making SCH-7 13 S.C.No.1079/2015 repayment of the loan installments to the Plaintiff Bank as agreed. Based on the contents of Ex.P.1 to Ex.P.8, this Court has further observed and come to the conclusion that, the Defendants have agreed to repay the loan amount of Rupees 1,00,000/- to the Plaintiff Bank with interest at the rate of 10% p.a., compounded monthly and also penal interest at the rate of 2% p.a., in case of default. Since the Defendants are very irregular in making repayment of loan installments as agreed and since, the Defendants have dragged the Plaintiff Bank to file the present suit for recovery of the outstanding loan due amount of Rupees 56,300/- as on the date of the filing of the present suit, the claim of current and future interest at the rate of 12% p.a., with monthly rests on the suit claim of Rupees 56,300/- from the date of the suit till its realization and also Rupees 2,500/- towards typing and other miscellaneous charges and also for seizure and sale of hypothecated movables for recovery of the suit claim by the Plaintiff Bank as against the Defendants in the present suit is proper and correct.
20. Under the above said facts and circumstances as well as the reasons given, this Court has come to the conclusion that, the Plaintiff Bank by producing acceptable material evidence, both oral and documentary, has positively established its specific case and as such, it is entitled for a sum of Rupees 56,300/- with current and future interest at the rate of 12% p.a., on monthly rest from the date of the suit till its realization and Rupees 2,500/- towards typing and other miscellaneous expenses and SCH-7 14 S.C.No.1079/2015 also for seizure and sale of hypothecated movables for recovery of the said amount and interest from the Defendants jointly and severally. Since the Defendants have dragged the Plaintiff Bank to file the present suit for recovery of the said due amount of Rupees 56,300/-, the Defendants are liable to pay the costs of the present suit to the Plaintiff Bank. Hence, the suit filed the Plaintiff Bank as against the Defendants is liable to be decreed with costs. Accordingly, I answered Point No.1 in the Affirmative.
21. POINT NO.2 :- For the aforesaid reasons, I proceed to pass the following;
ORDER The suit filed by the Plaintiff Bank is hereby decreed with costs.
The Defendants No.1 and 2 are hereby directed to pay a sum of Rupees 56,300/- jointly and severally with current and future interest at the rate of 12% p.a. with monthly rests from the date of the suit till its realization and Rupees 2,500/- towards typing and miscellaneous expenses to the Plaintiff Bank, within two months from the date of this Order.
SCH-7 15 S.C.No.1079/2015 If the Defendants fail to pay, by then, the Plaintiff Bank is at liberty to recover the same by seizure and sale of hypothecated movables and by way of other modes, in accordance with law.
Draw Decree accordingly.
(Dictated to the Stenographer directly on computer, typed by him, corrected and then, pronounced by me in the open Court on this, the 2nd day of February, 2016.) (INDIRA MAILSWAMY CHETTIYAR) IX Addl. Small Causes Judge & XXXIVACMM, Court of Small Causes, Member, MACT-7, Bangalore.
ANNEXURE
1. WITNESSES EXAMINED BY THE PLAINTIFF :-
P.W.1 : Sri. Pradeep Kumar. E.
2. DOCUMENTS MARKED BY THE PLAINTIFF :-
Ex.P.1 : Loan Application
Ex.P.2 : Sanction Letter dated 02.07.2010
Ex.P.3 : On Demand Promissory Note dated 25.09.2010
Ex.P.4 : Letter of Repayment dated 25.09.2010
Ex.P.5 : Articles of Agreement dated 25.09.2010
Ex.P.6 : Hypothecation Agreement dated 25.09.2010
Ex.P.7 : Letter of Lien dated 25.09.2010
Ex.P.8 : Letter of Guarantee dated 25.09.2010
Ex.P.9 : Acknowledgement of Liability dated 30.06.2012
SCH-7 16 S.C.No.1079/2015
Ex.P.10 : Acknowledgment of Liability dated 03.01.2013 Ex.P.11 : Office copy of Legal Notice dated 05.03.2015 Ex.P.12 : Postal Receipts 2 in numbers Ex.P.13 : Returned Un-served Postal Cover Ex.P.14 : Postal Acknowledgement Ex.P.15 : Statement of Account along with Certificate
3. WITNESSES EXAMINED BY THE DEFENDANTS :-
-NIL-
4. DOCUMENTS MARKED BY THE DEFENDANTS :-
-NIL-
(INDIRA MAILSWAMY CHETTIYAR) IX Addl. Small Causes Judge & XXXIV ACMM, Court of Small Causes, Member, MACT-7, Bangalore.