IN THE HIGH COURT OF JUDICATURE AT BOMBAY IN THE HIGH COURT OF JUDICATURE AT BOMBAY IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION ORDINARY ORIGINAL CIVIL JURISDICTION ORDINARY ORIGINAL CIVIL JURISDICTION SUMMARY SUIT NO. 3323 OF 2005 SUMMARY SUIT NO. 3323 OF 2005 SUMMARY SUIT NO. 3323 OF 2005 Punjab National Bank A Bank constituted under the Banking and Transfer of Companies (Acquisition g its registered Undertakings) Act, 1970, havine, Africa Avenue, office at 7, Bhikaji Kama Placalia a branch at New Delhi- 110 066 and inter t), Mumbai- 66. Daulat Nagar, Borivli (East) Manager Represented through Mr.Shyam P. Parkhi address at having at Asset Recovery C ell having aftary Road, Malad its branch at Shiv Baug Bldg., D Power of Attorney (East), Mumbai- 97 holding Valid dated 19.7.1982. ... Plaintiff. V/s. 1. Vijay Dnyanoba Chavan, residing at Flat No.201, Hanuman Nagar, 2nd Floor, Jyotirling Niwas, Thane District. Goddev-Pathak Road, Bhayander (East). 2. Girdharilal Prajapati, residing at R.No.5, Rahul Park, Jesal Park Road, Rahul Paradise Building, Bhayander (E), Dist- Thane. ... Defendants. Ms.Rehena Anandranj i/b. Pankaj Vijayan & Narayan Shetty for the plaintiff. None for the defendants. CORAM : V.C.DAGA, J. CORAM : V.C.DAGA, J. CORAM : V.C.DAGA, J. DATED : 19th March 2008. DATED : 19th March 2008. DATED : 19th March 2008. JUDGMENT : JUDGMENT : JUDGMENT : -------- -------- -------- . The plaintiff- Punjab National Bank ("Bank" for short) has filed this suit against the defendants for the recovery of their outstanding dues in the sum of Rs.6,35,281/- and also claimed future interest thereon from the date of suit till realisation. 2. The factual matrix reveals that defendant No.1 approached the plaintiff- Bank to borrow housing loan for a sum of Rs.4,50,000/- for the purpose of purchasing Flat No.201, 2nd Floor, Jyotirling Niwas, Hanuman Nagar, Goddev, Phatak Road, Bhayander (East), District- Thane. After scrutinizing the papers of defendant No.1 submitted by him along with his loan application, plaintiff agreed to grant loan and on 4th February, 2000, after entering into housing loan agreement with defendant No.1, plaintiff sanctioned loan of Rs.4,50,000/- to him repayable in 180 equal monthly installments of Rs.6,000/- taking into consideration the interest @ 13.5% per annum with quarterly rest. The defendant No.1 in order to secure the loan amount created equitable mortgage by way of depositing the title deeds and submitted original agreement of sale dated 19th February, 1996; original registration receipt dated 7th January, 2000 and no - 3 - objection certificate issued by the builders and agreed that in case of default on his part to comply with the terms and conditions of the loan agreement the bank shall have right to recall the entire outstanding. By deed of declaration dated 2nd February, 2000, the defendant No.1 acknowledged the grant of housing loan facility by the plaintiff- Bank in his favour and his creation of equitable mortgage by way of depositing the title deeds of the flat in question. By an irrevocable power of attorney dated 2nd February, 2002, the defendant No.1 has given all the powers to the plaintiff to carry out amongst others, the obligations in regard to the creation of the security for obtaining the housing loan in respect of flat in question. 3. The defendant No.2 is the guarantor who has executed agreement of guarantee dated 4th February, 2000 in favour of the plaintiff to secure the housing loan obtained by defendant No.1. 4. It is further case of the plaintiff that defendant No.1 by executing Balance and Security Confirmation letter dated 30th August, 2002 has acknowledged his liability confirming the correctness of balance outstanding amount of Rs.4,81,313/- as on 31st March, 2002. - 4 - 5. The defendant No.1 was very irregular in payment of loan installments. The plaintiff states that they repeatedly requested the defendant to comply with the terms of the loan agreement but he failed to comply the same. The total amount of outstanding as on 28th February, 2004 was Rs.5,54,619/-. Accordingly, plaintiff issued a recall notice to defendant No.1 dated 28th February, 2004 calling upon him to repay the entire amount within 15 days from the receipt thereof. The said notice was returned back with remark "parties shifted". The plaintiff further issued notice dated 28th February, 2004 under section 13(2) of the Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 which also returned back with the same remark. The plaintiff has filed extract of the statement of account till 24th August, 2005 along with plaint showing outstanding amount of Rs.6,35,281/-. The plaintiff has, therefore, filed this suit for recovery of their outstandings due and recoverable from the defendants with future interest. 6. The writ of summons sent to the defendants returned unserved with remark "LEFT". The defendants were served by way of substituted service by publishing the summons in the newspaper "Free Press - 5 - Journal" dated 28th February, 2007. The defendants did not appear. With the result, suit proceeded ex parte. Vide order dated 30th January, 2008, the plaintiff was directed to file extracts of accounts duly certified under the Bankers Books Evidence Act along with affidavit of evidence. 7. In the above view of the matter, only issue for consideration is: whether the plaintiff is entitled to decree? 8. The plaintiff has filed affidavit of their Principal Officer and C.A. Shri C.H.Patil in lieu of evidence in support of suit claim and produced as many as 13 documents including extracts of accounts duly certified under the Bankers Books Evidence Act. All these documents are taken as proved by the plaintiff through the affidavit of Shri Patil. In view of the Supreme Court judgment in the case of State Bank of State Bank of State Bank of India v. Yumnam Gouramani Singh, India v. Yumnam Gouramani Singh, India v. Yumnam Gouramani Singh, AIR 1994 SC 1644, oral evidence is a good corroboration under section 34 of the Indian Evidence Act. 9. Since nobody appears for the defendants the evidence led by the plaintiff- Bank went unchallenged. With the result, plaintiff is entitled to a decree in terms of the suit claim with slight modification of - 6 - rate of future interest on the decretal amount which has to be at the prevailing rate of bank interest. Hence the following order: ORDER (i) The suit is decreed in terms of the prayer clauses incorporated in the plaint. (ii) The defendants do pay jointly and severally Rs.6,35,281/- with interest thereon @ 10% per annum from the date of suit till payment or part payment thereof with costs. (iii) Decree be drawn in terms of this order. (V.C.DAGA, J.) (V.C.DAGA, J.) (V.C.DAGA, J.)